BBA.LLB.

VI SEMESTER
LLB Paper Code: 302

Subject: Jurisprudence

This study material on Jurisprudence has been prepared specifically

for the students of B.B.A., LL.B. (Hons.), VI Semester, School of
Law, Fairfield Institute of Management & Technology- GGSIPU,
New Delhi. I know that this study material is quite lengthy but you
need not to worry and before you start with this material, just
remember (and/or keep in your mind) the words of Joseph Addison
who said, “Reading is to the mind what exercise is to the body” (I
hope that his words will work as morale booster capsule for YOU,
the readers). This material is only informative in nature and the
students are advised that they must go through the reference text
books in order to get the basic “idea” of the concept(s) in more
detail. This study material only gives the basic idea f the concept(s)
and does not restrict(s) the students to form their own point of view
and/or opinion.

“The most complete gift of God is a life based on ‘knowledge’1.”

―Imam Ali ibne Abi Talib (AS)

व या पं कु पाणां, नधनानां धनं तथा |

नबलानां बलं व या साधनीया य नतः |

“Vidya rupam kurupanam, nirdhananam dhanam tatha

nirbalanam balam vidya, sadhaniya prayatnatah”
(Knowledge is the beauty of the not-beautiful and wealth of the not-wealthy.It
is power of the powerless, and it is obtained with lot of effort.)

Unit- I
Meaning, Content and Nature of Jurisprudence
“Jurisprudence was the first social sciences to be born”.
—Wurzel

1
The emphasis is on the word “knowledge”. The question may arise in the mind of the reader(s), why only the word
“knowledge” has been emphasized? So, to get the answer of the same and also to understand the complete and astute
meaning of the above quoted quote, let’s quote another quote of Imam Ali (AS), “Knowledge gives life to the soul.”

Page 1 of 208
The English word “Jurisprudence”is based on the Latin word‘jurisprudentia’which in its widest
sense, means ‘knowledge of law’. The Latin word ‘juris’which is the genitive form of ‘jus’
meaning "law", and prudentia means "prudence", “skill” or “knowledge” (it refers to the exercise
of good judgment, common sense, and even caution, especially in the conduct of practical
matters). Thus, jurisprudence signifies knowledge of law and its application. The word is first
attested in English in 1628, at a time when the word prudence had the meaning of "knowledge of
or skill in a matter". The word may have come via the French jurisprudence, which is attested
earlier.

Jurisprudence is the science, study, and theory of law. It includes principles behind law that
make the law. Scholars of jurisprudence, also known as jurists or legal theorists (including legal
philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of
law, of legal reasoning, legal systems, and of legal institutions. Modern jurisprudence began in
the 18th century and was focused on the first principles of the natural law, civil law, and the law
of nations.[1] General jurisprudence can be divided into categories both by the type of question
scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding
how those questions are best answered.

Ancient Indian jurisprudence is available in various Dharmashastra texts starting from the
Dharmasutra of Bhodhayana. Jurisprudence already had this meaning in Ancient Rome even if at
its origins the discipline was a (periti) in the jus of mos maiorum (traditional law), a body of oral
laws and customs verbally transmitted "by father to son". Praetors established a workable body
of laws by judging whether or not singular cases were capable of being prosecuted either by the
edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions
made to the edicta. An iudex then would judge a remedy according to the facts of the case.

Their sentences were supposed to be simple interpretations of the traditional customs, but
effectively it was an activity that, apart from formally reconsidering for each case what precisely
was traditionally in the legal habits, soon turned also to a more equitable interpretation,
coherently adapting the law to the newer social instances. The law was then implemented with
new evaluative Institutions (legal concepts), while remaining in the traditional scheme. Praetors
were replaced in the 3rd century BC by a laical body of prudentes. Admission to this body was
conditional upon proof of competence or experience.

Page 2 of 208
Under the Roman Empire, schools of law were created, and the activity constantly became more
academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was
produced by some notable groups including the Proculians and Sabinians. The scientific depth of
the studies was unprecedented in ancient times.

After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable
authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again
undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis
was born.

Approaches to the study of Jurisprudence:

There are two ways to study Jurisprudence, i.e., one, Empirical- Facts to Generalization, and two
A Priori- Start with Generalization in light of which the facts are examined.

Utility of Jurisprudence

It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical
use. But it is not correct to say so. Its utility is as under:
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other
subject of serious scholarship, likewise the writer on jurisprudence may be impelled to
his subject by its intrinsic interest. The legal researches on jurisprudence may well have
their effect on contemporary socio-political thought and at the same time may themselves
be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the
complexities of law more manageable and rational and in this way theory can help to
improve practice in the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens
the outlook of lawyers and sharpens their logical technique. It helps them in shading
aside their rigidity and formalism and trains them to concentrate or social realities and the
functional aspects of law. It is not the form of law but the social function of law which
has relevance in modern jurisprudence. For instance, a proper understanding of law of
contract may perhaps require some knowledge of economic and economic theory or a

Page 3 of 208
 proper grasp of criminal law may need some knowledge of criminology and psychiatry
and perhaps also of sociology.
4. Commenting on the significance and utility of jurisprudence: Holland observed, “the ever
renewed complexity of human relations call for an increasing complexity of legal details,
till a merely empirical knowledge of law becomes impossible.” Thus jurisprudence
throws light on the basic ideas and the fundamental principles of law in a given
society. This why it has been characterized as “The eye of law”.
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the
laws passed by the legislature by providing the interpretation.
6. The study of jurisprudence helps in rationalizing the thinking the students and prepares
them for an upright civil life. The knowledge of law and legal precepts also helps them to
face every exigency of human affairs boldly and courageously.
7. Jurisprudence may also be helpful for legislators who play a crucial role in the process of
law-making. The study of jurisprudence may familiarize them with technicalities of law
and legal precepts thus making their job fairly easy as also interesting.

According to Dias“the study of jurisprudence provides an opportunity for the lawyer to bring
theory and life into focus for it concerns human thought in relation to social existence. The law
should serve the purpose of social-engineering by preserving societal values and eliminating
conflicting interests of individuals in the society.”

Jurisprudence is the ‘Eye of Law’

On account of importance of jurisprudence in the field of law it is called, “The eye of Law”. The
eyes are one of the most important parts of human body. Almost all human activities and the
movements of body are possible only through them. Unless man can see anything properly, he
cannot do any work. The reason of calling jurisprudence the ‘the eye of law’ is that jurisprudence
functions for law in the same manner as the eyes do in human body. For example, the
interpretation of law is a very difficult task, It cannot be done without the help of jurisprudence.
‘Paton’ in this connection says that, “Jurisprudence is a particular method of study, not the law
of one particular county but of the general notions of law itself.” Whenever any complicated
problem regarding law like:

1. How and when the law developed.

Page 4 of 208
 2. What is its object.
3. Whether the law was made by people or it was due to the inspiration of some Divine
force.
4. Whether the law is a command of a sovereign or it is a result of gradual development of
civilization in society.
5. The main function of jurisprudence is to study the origin of law, its development and its
contribution towards society.

The matters to birth, marriages, death, succession etc., are equally controlled through laws. It is
the well-known saying that, “ignorance of law is no excuse,” hence, it is essential to know the
correct basic principles of law which are contained only in the jurisprudence. Law is also
connected with civil life. A person who obeys laws is known as a civilized citizen. A person who
does not obey law is punished. It is therefore necessary that all the people should have the sound
knowledge of law which is possible only with the help of jurisprudence. Therefore,
jurisprudence, having so much importance for the society, has rightly been called the eye of law.

Importance of Jurisprudence

Jurisprudence also has some practical value. Nowadays progress in science and mathematics has
been largely due to increasing generalization which has unified branches of study previously
distinct unified branches of study previously distinct, simplified the task of both scientist and
mathematician and provide them to solve by one technique a whole variety of different
problems. Generality can also be understood as improvement in law. One of the tasks of
jurisprudence is to construct and elucidate concepts serving to render the complexities of law
manageable and more rational. In this way, theory can be useful to improve practice.

Jurisprudence has an educational value. The logical analysis of legal concepts that sharpens the
logical technique of a lawyer. Jurisprudence can be helpful to the people to find answers to new
legal problems must be found by a consideration of the present social needs and not in the
wisdom of the past.

Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental
principles of law. By studying jurisprudence a lawyer can find out the actual rules of law.

Page 5 of 208
Jurisprudence provides guidelines to the judges and the lawyers in ascertaining the true meaning
of the laws passed by the legislatures by providing the rules of interpretation.The study of
jurisprudence also helps in rationalizing the thinking of the students.

Islamic Schools & Jurisprudence

Under this head, we will discuss the Principles of Islamic jurisprudence, also known as Uṣūl al-
fiqh is the study and critical analysis of the origins, sources, and principles upon which Islamic
jurisprudence is based.Traditionally four main sources (Qur’an, Sunnah, consensus (Ijma),
analogical reason (Qiyas)) are analyzed along with a number of secondary sources and
principles.

The main subject areas of discussion are these:

i. General evidences and principles (adillah ijmalliya wa al-qawaid),

ii. Resolution of conflict and discrepancy (ta'adal wa tarjeeh),
iii. Determination of rules and adoption/emulation of rules (ijtihad wa taqlid), and
iv. Islamic Law (hukm shari).

Uṣūl al-fiqh comprises the conjunction of two Arabic terms, uṣūl and fiqh. Uṣūl is derived from
the root letters hamza, sad and lām which refers to basis. Fiqh linguistically refers to knowledge,
deep understanding or comprehension.

Technically, the term is used to refer to the body of evidences and principles that Islamic jurists
utilise to provide solutions to problems.

Definition of the Science of Uşūl al-Fiqh

The science of uşūl al-fiqh is a science in which such rules whose results are placed in ways of
deduction of juristic precepts are discussed. For instance, performing the prayers (şalāt) is
mandatory in Islam, and this Qur’ānic verse proves that obligation: “And that perform the
prayers” (6, 72). However, denotation of the verse is dependent upon the imperative, like
“perform” in that verse, being apparent in the obligation on the one hand and Qur’ānic apparent
meanings being authoritative on the other. Those two issues are dealt with in the science of uşūl
al-fiqh. Now, when the jurist learns through this science that the imperative is apparent in the

Page 6 of 208
obligation and that the Qur’ānic apparent meanings are authoritative proofs, he can infer from
the said verse that the prayers is mandatory.

Primary Sources

The Qur'an has always been regarded as the primary legal source of Islam, the speech of Allah. It
has been transmitted through numerous chains (mutawatir) and proven through rational
argument.

This has been supplemented by further revelation termed sunnah. It comprises explanations from
Muhammad in terms of his speech, actions and silences which have been historically compiled
and verified through chains of narrations called hadiths. Sunnah is referred to for elaboration of
the Quran or for clarification of a matter that is not mentioned in the Quran and is second in
prioritization to Quran.

The Muslim jurists have found that some revelation has been captured through collective
agreements expressed after the death of Muhammad through consensus of his companions which
were transmitted over the ages. These are compiled as instances of consensus of the companions
(ijma al-sahaba).

Only when these failed to provide the authority sought did jurists resort to interpretation ijtihad.

In the very early days of Islam Muslim authorities tended to rely on their own opinions to
establish their interpretation of what a prescribed law should be for any given situation not
founded on the Qur'an, a practice known as ra'y.

The jurist ash-Shafi'i, however, preferred to rely solely on traditions from Muhammad and
thereafter on the method known as qiyas(analogy) where interpretations were to be derived from
comparisons with relative subjects dealt with in the Qur'an or the traditions.

It is now the scholarly consensus, amongst both orientalist and traditional scholarship, that the
following is a myth:

"Once Shafi'i's school of law was fully established together with the other schools
founded by Ahmad ibn Hanbal, Abu Hanifa and Malik, the "door" of ijtihad was closed
and it was considered that ijma had been reached on all necessary points of law (though
the schools differ in many matters to this day but mostly on minor points of
interpretation). Accordingly, Islamic jurisprudence has changed little for centuries and is

Page 7 of 208
 based fundamentally on the four sources mentioned above. There is much debate and
critique as to whether closing the gates of ijtihad was acceptable and whether it
contributed to the intellectual and civislisational decline of the Muslims."

Wael Hallaq is widely credited for decisively discrediting this myth in the western world,
whereas others such as Qasim Zaman continue to show how the Ulema continued to actively
engage in Ijtihad. However, there is a valid debate over the degree to which the Ulema remained
active in such endeavours ever since colonialism and modernity intruded Muslim lands. In fact,
faced with such drastic change, there are certain cases that do show the Ulema to be initially
dismissive of sociopolitical realities and hence lagging in their response- Nevertheless,
eventually finding legal stratagems to solve dilemmas. A case in point is the issue of women's
divorce in the time of Ashraf Ali Thanvi.

In the Shi'a schools, they have continued with ijtihad to the present day. They however disputed
the methodology of compilation of narrations of sunnah and also limited consensus of the
companions to consensus of the family of Muhammad (ijma ahl al-bayt).

Secondary Sources

i. Istihsan,
ii. Masali Mursala,
iii. Ihsaan (spiritual excellence, virtue),
iv. Istidlaal,
v. Urf (local custom or pre-existing law),
vi. Aql (reason or intellect),
vii. Sadd al-dharai,
viii. Shara man qablana,
ix. Ijma al-ummah (consensus of the worldwide Muslim community),
x. Ijma khulafah al-rashideen (consensus of the first four caliphs),
xi. Ijma ahl al-medina (consensus of the Muslims of Medina, as reflected in early hadith
collections, e. g. the Muwatta of Anas bin Malik),
xii. Ijma al-ullama (consensus of scholars of Islamic law), and
xiii. Ijma ahl al-hali wa al-aqd.

Page 8 of 208
Benefits of the Science of Uşūl al-Fiqh

Since it is clearly known that any human voluntarily act has a precept in Islam, whether
obligation, unlawfulness, or any of the five-fold burdensome precepts, on the one side, it is
known that not all those precepts are known to everyone by self-evident knowledge but most of
them are in need of survey and proof, i.e., they are deductive on the second, and uşūl al-fiqh is
the only science formulated for proving juristic precepts on the third, the benefit of this science
would be seeking assistance for deducing precepts from their proofs.

The Schools of Thought

The schools of Sunni Islam are each named by students of the classical jurist who taught them.
The Sunni schools (and where they are commonly found) are:

(i) Hanbali (Saudi Arabia and parts of Syria and Jordan)

(ii) Hanafi (Turkey, the Balkans, Central Asia, Indian subcontinent, northwest
China and Egypt)
(iii)Maliki (North Africa, West Africa, Sudan and several of the Arab states of the Persian
Gulf)
(iv) Shafi'i (Indonesia, Malaysia, Ethiopia, Egypt, East Africa, Yemen, Somalia and southern
parts of India)
(v) Zahiri (minority communities in Morocco and Pakistan)
(vi) Qurtubi No longer exists
(vii) Laythi No longer exists
(viii) Awza'i No longer exists

The schools of Shia Islam comprise:

i. Ja'fari (Iran, Iraq), and

ii. Zaydi

The schools of Khawarij comprise

1. Ibadi (Oman)

These schools share many of their rulings, but differ on the particular hadiths they accept as
authentic and the weight they give to analogy or reason (qiyas) in deciding difficulties.

Page 9 of 208
Principles within Sunni Islam

i) That which is necessary to achieve an obligation is obligatory

ii) That which leads to haram is haram
iii) Lesser of the two evils
iv) The doubt does not remove the certainty

Islamic law within the Sunni understanding draws from numerous sources. The most basic two
sources – indeed, the defining characteristics of Sunni Islam– are the Qur'an, believed by
Muslims to be the literal word of God, and the prophetic traditionincluding the statements and
actions of Muhammad passed down through historically verifiable reports. Consensus is also
accepted by Sunni Muslims, though there is much differing over its exact definition. Analogical
reason is typically referred to as a fourth primary source by later and modern Muslim authors,
though its exact definition and even validity are not unchallenged.

Beyond the four main sources, other methods such as juristic discretion, public welfare and local
custom are often considered, though discussions regarding how these sources are to be applied is
ongoing.

The contribution of al-Shafi'i

Al-Shafi'i documented a systematized set of principles, developing a cohesive procedure for

legal derivation of verdicts. His approach contrasted with the Hanafite methodology that
determined the sources from the sayings and rulings of the companions and successors.
Furthermore, he raised the Sunnah to a place of prominence and restricted its legal use.
According to Shafi'i, only practices directly passed down from Muhammadwere valid,
eliminating the legitimacy of practices of Muhammad's followers. Prior to Shafi'i, legal
reasoning included personal reasoning thus suffering from inconsistency. Shafi'i is probably best
known for writing Risala, a prime example of applying logic and order to Islamic
jurisprudence.[2] While Risala is considered a seminal work in the field of principles, it has been
noted that the term "usul" is neither found in the title of the book nor is it used as such within the
text.

Page 10 of 208
Evolution of Methods
Between Shafi'i's Risala and the next attested works of usul is a gap of several hundred years.
These later works were significantly different from Shafi'is book, likely due to the insertion
of Mu'tazilite and Ash'arite theology into works of jurisprudence.The difference between Shafi'i's
work and these later works – in terms of both content and the large chronological gap between
which they were all composed – is so great that modern scholarship has questioned the status of
Shafi'i as the founder of Islamic jurisprudence.Topics which became staples of written work on
the principles of jurisprudence, such as reason versus revelation and interfaith debates regarding
abrogation after revelation in Islam versus Judaism, were not even discussed by Shafi'i.

Indeed, even the division of the sources of Sunni law into four – Qur'an, prophetic
tradition, consensus and analogical reason – was not present in Shafi'is books at all, despite
Muslim scholarship generally attributing this division to him. According to Qadi al-Nu'man, one
of the earliest jurists to write about usul after Shafi'i did- perhaps during Shafi'is lifetime- was
Abū 'Ubaid al-Qāsim, who actually considered the sources of law to consist of only three– the
Qur'an, the prophetic tradition, and consensus consisting of either scholarly consensus or
consensus of the early generations. This division into four sources is most often attributed to later
jurists upon whose work most Sunni jurisprudence has been modeled such as Baqillani and Abd
al-Jabbar ibn Ahmad, of the Ash'arite and Mu'tazilite schools respectively. Thus, the four main
sources often attributed to Shafi'i evolved into popular usage long after his death.

Additionally, the later scholars of the four mainstream Sunni schools of law all increased beyond
four sources; while the four sources are the most widely accepted, other practices such as
the Fatwas of the first generation of Muslims and the application of pure reason are not
universally accepted.

Application of sources
Even after this evolution, there are still some disputes among Sunni jurists regarding these four
sources and their application. Malik ibn Anas, Ahmad ibn Hanbal and in particular Dawud al-
Zahiri rejected all forms of analogical reason in authentic narrations from them,yet the
later Malikites and Hanbalites – and in some cases, even Zahirites – gravitated toward the
acceptance of varying levels of analogical reason already accepted
by Shafi'ites and Hanafites. Malik and Abu Hanifa both accepted pure reason as a source of law;

Page 11 of 208
Ahmad and Shafi'i did not, and Shafi'i was especially hostile to juristic preference as
implemented by Abu Hanifa, yet pure reason later found its way into all Sunni schools of law.

The question of consensus has evolved considerably. Abu Hanifa, Ahmad and Zahiri only
accepted the consensus of the first generation of Muslims, while Malik was willing to accept the
consensus of the first generation in general or the consensus of later generations within the
community of Medina. Shafi'i insinuated that consensus was not practically possible to
confirm. Later scholars of all schools eventually followed the views of Al-Ghazali and Ibn
Taymiyyah in expanding the definition of accepted consensus to include scholarly consensus and
silent consensus as well.

Principles within Shia Islam

In Shi'a legal theory, analogical reason isn't recognised as a source of law; pure reason is,
however. Shi'ites may differ in the exact application of principles depending on whether they
follow the Ja'fari, Ismaili or Zaidi subdivisions of Shi'ism.

Ja'fari Principles

There are two interpretations of what constitutes sources of law among jurists of the Ja'fari
school.

1. According to the Akhbari view, the only sources of law are the Quran and the Hadith, and
any case not explicitly covered by one of these must be regarded as not having been provided
for.
2. According to the majority Usuli view, it is legitimate to seek general principles by induction,
in order to provide for cases not expressly provided for. This process is known as ijtihad, and
the intellect is recognised as a source of law. It differs from the Sunni qiyas in that it does not
simply extend existing laws on a test of factual resemblance: it is necessary to formulate a
general principle that can be rationally supported.

Ja'fari principles refers to regulations, history and eminent persons and scholars during the
development of Shia's Principles of Islamic jurisprudence. Considering different stances in
relation to Juridical rules and principles, there are some parties in the schools of Principles.
These schools try to apply analytical approaches in their methodology. There are somebodies
such as Zorarah Ibn Aayon, Muhammad Ibn Moslem, Abu Basir and also Hisham Ibn

Page 12 of 208
Salem.Among these individuals, Hisham Ibn Salem and His Pupils had eminent roles in
development of principles among shia.In this period two problems are so important such as
difference of hadith in one hand and the distinctions of Ijtihad or authority in other hand.There
are two early scholars in principles of jurisprudence who were eminent including Hisham ibn
Hakam and Yunes Ibn Abd Al Rahman.some scholars know Hisham ibn hakam and hisham ibn
salem among the outstanding pupils of Imam Sadiq and Imam Kazim they wrote important
books in the field of principles of jurisprudence such as "Kitab Al Akhbar" and " Kayfa Taseh"
or "How it is correct?"

It seems that the dominant current was the Adherents of Hadith during the fourth century of
Lunar hijrah. They didnt any need to knowledge of principles and put it away.In other hand the
relatives of Nobakhti begun a new movement in the sphere of theology and kalam among shia
and Imamiyyah.Abu Sahl Nobakhti, the popular theologian of Shia schools, could presented a
new and complete theological system along with Shia characters.In Fact Abu Sahl Nobakhti
concerned with the principles through the theological works such a way that He referred to some
questions in the field of the principles.According to Madlung this approach of Abu Sahl
Nobakhti and his theological system was along with defending of Imami creeds and theological
beliefs.Maybe the most important Abu Sahl's essay in the principles is the essay of "Naqz Al
Shafe'ei or the refusing the shafe'ei which is written against Shafe'ei and also counted as the first
completed work in the principles among imamiyyah, besided he written some books on the
subjects of refusing Qyias in jurisprudence and ijtihad Al R'ay.Of course, there is no track from
these works and they are lost.During the fourth century of Hijrah, already one trend is very
dominant which is indeed on the basis of refusing of Qiyas and R'ay in jurisprudence. Also there
were many books concerned with these subjects among imami Theologians. for example Hasan
ibn Mousa Nobakhti wrote a book by the name of "A book on the khabar Vahed and
Amal".according to this works there is no appication for Qiyas and R'ay.Among The first
Mutakalim Jurist in fourth century is Ibn Abi Aqil Ammani as someone who possessed a school
which his method was similar to Twelve Imams of Shia and somehow like the Mutazilite
schools of thought.

Page 13 of 208
Ibn Abi Aqil and his thought:

His complete name was Ibn Abi Aqil Ammani and he came from the Yemen. He was
contemporary with Shaykh Koleini.Ibn Aqil counted as pioneer jurist in the principles. He could
establishing an approach on which His juridical methodology was dependent on Quranic rules
and known traditions.He is the author of a legal work entitled Mutamassak bi Habl Al Rasul,
which was one of the most renowned legal sources during the 4th and 5thand 11th centuries.He is
the first one who arrange the knowledge of fiqh and give consistency to it.

Ibn Jonayd Eskafi:

Ibn Jonayd Eskafi was one of the first and eminent Shia jurists during the fourth century lunar
hijrah.He had different approach in understanding of Shia's traditions. He believed that there is a
theological basis for interpretation of Hadith on which the Juridical tradition of Imams is not
according to Saying but to Ray or opinion.He was an eminent religious scholars among
elites.Also Ibn Nadim knows him as great scholars among Shia.One of his most important book
in Fiqh is Tahzib Al Shia le Ahkam Al Shariah.

Jaʿfarī school of thought, Jaʿfarite School, Jaʿfarī jurisprudence or Jaʿfarī Fiqh is the school
of jurisprudence of most Shi'a Muslims, derived from the name of Jaʿfar as-Ṣādiq, the 6th Shi'a
Imam. This school of jurisprudence is followed by Twelvers in general and Isma'ilis in part, as
well as a small minority of Zaidis.

It differs from the four or sometimes Five Schools or madhhabs of Sunni jurisprudence in its
reliance on ijtihad, as well as on matters of inheritance, religious taxes, commerce, personal
status, and the allowing of temporary marriage or mutʿa. However, despite these differences,
there have been numerous fatwas regarding the acceptance of Jaʿfarī fiqh as an acceptable
Muslim madhhab by Sunni religious bodies. These include the Amman Message and a fatwa by
Al-Azhar. In the modern era, former Prime Minister of Sudan Sadiq al-Mahdi defined the
recognized schools of Muslim jurisprudence as eight, Ja'fari was one of them. While many
differences between Ja'fari fiqh and that of Sunni Muslims are minor, a notable difference being
that Ja'fari jurisprudence allows temporary marriage in the form of (Nikah mut‘ah), while Sunni
Islamic Law allows for temporary marriage in the form of (Nikah Misyar) and Nikah 'urfi.

Javadi Amoli wrote about source of revelation in Shi’ism:

Page 14 of 208
 1. The most important source in Shiite law is the Quran itself, which interprets itself.
2. The other source is the tradition of the infallibles (the family of the prophet) peace be
upon them, according to the successive tradition (Saqalain) passed down by the family of
the prophet (peace upon them) as well as according to the Quran itself: to accept one
without the other is equivalent to rejecting both of them.
3. A third source is theoretical wisdom where it is impossible to conceive the contrary,
which proves the existence of God and the necessity of his unity, eternity, pre-existence,
power, will and other exalted attributes: this cannot be denied with any verse.
4. Although we cannot impose science upon the Quran, we can use verified scientific,
experimental, historical, artistic, logical and other evidence to interpret the subject
addressed in a given passage, rather than through another verse.[19]

In doubtful cases the law is often derived not from substantive principles induced from existing
rules, but from procedural presumptions (usul 'amaliyyah) concerning factual probability. An
example is the presumption of continuity: if one knows that a given state of affairs, such as ritual
purity, existed at some point in the past but one has no evidence one way or the other whether it
exists now, one can presume that the situation has not changed.[20]

The analysis of probability forms a large part of the Shiite science of usul al-fiqh, and was
developed by Muhammad Baqir Behbahani (1706-1792) and Shaykh Murtada al-Ansari(died
1864). The only primary text on Shi'ite principles of jurisprudence in English is the translation
of Muhammad Baqir as-Sadr's Durus fi 'Ilm al-'Usul.

Parts of the Shiite Uşūl al-Fiqh

Discussions of this science are presented in various parts in the works of uşūl al-fiqh. However,
the best division is presented by al-Muhaqqiq al-Isfahani (d. 1940) in his last course of teaching
(as narrated by his great student Muhammad Rida al-Muzaffar in his Uşūl al-Fiqh, p. 11)
according to which all uşūlī topics are discussed in the four following parts: Discussions of
“terms,” of “intellectual implications,” of “the authority,” and of “practical principles.”
Discussions of terms deal with denotations and appearances of terms from a general aspect, such
as appearance of the imperative in the obligation, that of the prohibition in the unlawfulness, and
the like. Discussions of intellectual implications survey implications of precepts even though
such precepts may not be inferred from terms, such as discussing truthfulness of mutual

Page 15 of 208
implication of intellectual judgments and juristic precepts, of obligation of something
necessitating obligation of its preliminaries (known as “the problem of preliminary of the
mandatory act”), of obligation of something necessitating unlawfulness of its opposite (known as
“the problem of the opposite”), of possibility of conjunction of the command and the prohibition,
and so on. Discussions of the authority investigate whether some specific thing is juristically
treated as a proof; for instance, whether report of a single transmitter, appearances, appearances
of the Quran, Sunna, consensus, intellect, and the like are authoritative proofs. Discussions of
practical principles deal with what the jurist refers to when he cannot find a persuasive proof,
such as the principle of clearance from obligation, that of precaution, and so forth. For more on
this science, see An Introduction to Methodology of Islamic Jurisprudence(A Shiite Approach).

Ismaili principles
Most early Ismaili works within the field of the principles of jurisprudence were actually
responses to Sunni works on the topic.Qadi al-Nu'man's Differences Among the Schools of
Law is most likely the first of such written responses.

Famous classical Muslim jurists (usoolis)

1. Imam Ja'far al-Sadiq (AS)

2. Imam Ali ibne Abi Talib (AS)
3. Imam Hasan (AS)
4. Imam (Hussain)
5. Imam Ali Reza (AS)
6. Mohammed Idris al-Shafii
7. Malik bin Anas
8. Ahmad bin Hanbal
9. Amidi
10. Ghazali
11. Sarkhasi
12. Asnawi
13. Abu Yusuf
14. Shaybani
15. Imam Qurtibi

Page 16 of 208
 16. Layth bin Sa'ad
17. Sufian bin 'Uyayna, and so on.

Hindu Law & Jurisprudence

This is the Article of Professor N. R. Madhava Menon, published in The Hindu,dated May 31,
2011.

Religious origins and traditions in law have been subjects of research in many countries among
philosophers, jurists, and historians. This has led to a rich variety of comparative legal literature,
illuminating juristic thought and providing some significant insights into the foundations of
modern legal systems. Donald Davis Jr.'s The Spirit of Hindu Law is a close second to the
classics on Indology in examining the role of Dharma in Hindu legal and religious traditions. He
has adopted an inter-disciplinary approach and comparative methodology which is both
refreshing and revealing. For Davis, “law is the theology of ordinary life” and the European
notion of law, as rules backed by sanctions enforced by the state, is an unnatural idea produced at
a certain moment in history to serve certain colonial objectives. Among the merits he identifies
in the concept is that it acknowledges and explains the gap between ‘rule' and ‘behaviour' in
everyday life and highlights the higher purpose involved whenever law is invoked.

The true nature of law lies in its integral relationship with religion, though the two are different
entities and have different roles to play in society. Despite several centuries of deliberate
secularisation, the state could not remove elements of religion from the law even in nations that
are most secular, liberal, and democratic. The methodology he adopts is to analyse some select
key concepts drawing support from authoritative Sanskrit texts, relate them to the total Hindu
legal tradition, and finally bring out their relevance to contemporary justice system in
comparative situations.

Household

In the chapter where he examines the concept of ‘sources' (Pramana), Davis contends that Hindu
law applies primarily to the ‘household', not the state. It follows therefore that Hindu law and

Page 17 of 208
jurisprudence should be understood differently from those that are predicated upon the state's
exclusive jurisdiction over the law.

This focus on the household or householder leads to the Hindu legal tradition being linked to the
living religious tradition, a link that manifests itself in five ways: sacramental rites (related to
birth, marriage, death etc.,); domestic rites (performing pujas, worshipping deities, etc.,); actions
to fulfil physical needs; social aspects like family transactions, caste status, etc; and
expiatory/purificatory rites. Institutionally locating law in the household enables Hinduism to
develop a shared community orientation which, in turn, shapes the legally constituted world of
its members.

The author makes an interesting point about the subtle yet significant aspect of Hindu law.
Generally, the “rule of law” is distinguished from the “rule of men” to emphasise that ‘authority'
rests in law, not in the men who are implementing it. The “rule of the lawful”, envisaged by the
Hindu law, moderates the conceptual superiority of law and seeks to avoid the problems arising
from total depersonalisation of law. Both “rule of law” and “rule of the lawful” — that is, rule by
men of virtue and nobility — are necessary for a legal system to operate effectively.

The author asserts that the legal concepts central to Euro-American scholarship do not exhaust
the rich legacy of ancient legal systems. An extensive comparative study is needed in this area.
Unfortunately, Hindu law studies have, by and large, been confined to listing the differences and
striving to establish that Hindu law is just as sophisticated as any other legal system. Delving
deep into the history of Hindu religious traditions has not been a fashionable venture with
scholars. By way of explanation, Davis says that “the need to know the details of Hindu law for
the sake of a ‘non-intrusive' colonial administration has put us in the habit of only
learning about Hindu law, and not from it”. His effort, therefore, has been to know the Hindu
thinking on law by looking at the key conceptual ideas of Hindu jurisprudence. Hence the book's
title: The spirit of Hindu law.

Writing “on the beauty of Hindu law” in the concluding chapter, Davis says the post-French
Revolution period of Euro-American legal history is, in a way, the story of progressively
restricting law to the court and the legislature, domains controlled by the state. What many of the
scholars who studied “legal pluralism, religious law, or legal anthropology” have shown,

Page 18 of 208
however, is that “while this narrative has worked effectively in terms of how many people
understand law conceptually, it has also hidden the reality of plural legal orders, alternative
normative regimes, and religious or traditional self-appropriations of law's creative, co-
ordinating, good-producing potential.”

Dharma

In contrast, he contends, Hindu law calls “all of this Dharma and we would be well served to ask
what might be gained by calling it all law as well … Religious legal systems such as Hindu law
remind us that legal, or at least law-like, processes and institutions function in even the most
ordinary of human contexts, that law is not necessarily the sole province of the state, and that law
enables human flourishing as much as it constrains human vice … Hindu law shows that law's
domain is co-extensive with life itself.”

Here is a book that is well researched, well written, and out-of-the-ordinary, exploring religio-
legal traditions with a view to discovering what to learn from them rather than just explain.
Scholars interested in comparative law and theology will find a mine of information in it for
further research. Students and teachers will get refreshingly new ideas on what to look for in
ancient legal systems and how to relate them to the contemporary situation and requirements.

The Sources and Schools of Hindu Law and Jurisprudence; With Emphasis on the
Dayabhaga School and the Concept of Private Property and its Legal Sanctity in Hindu
JurisprudenceDharma as Law
As we celebrate 65 years of the adoption/promulgation of our Constitution, it would be most
pertinent to examine the role of the customary and traditional personal laws of the communities
of the different religious denominations constituting the totality of the population of the country.
To the extent the Constitution permits and allows the operation of various personal laws under its
overall framework, the personal law of the Hindus constitutes the largest body of legal system
that governs the lives of almost 80% of the population of the country. Even though a large part of
the customary and traditional body of Hindu Law has now been codified over the years, since
independence, such as the law governing succession and marriage, by such legislative
enactments as The Hindu Succession Act and the Hindu Marriage Act, the codification is
anything but exhaustive. Furthermore, when the law courts are faced with the task of interpreting
the various codified provisions, a reference to the original sources of Hindu Law becomes

Page 19 of 208
imperative. An exercise of tracing these traditional sources, with the purpose of understanding
the origins and historical development of this body of traditional law, is therefore not only
relevant but is in fact essential.

The Meaning of the Term Dharma and its Relation to “Law”:

It is now generally acknowledged that the Hindu Legal System proudly shares the most ancient
pedigree amongst the known legal systems the world over. But even before we try to trace the
ancient sources of Hindu law as it has been handed down by our ancestors to us over
innumerable generations, it is of utmost importance to clearly understand as to what was
understood by the term “law”, as we understand it today, in ancient as well as medieval India. It
is necessary to do so because the word or term used in ancient Indian legal literature for the term
“law” as we use it today, was “Dharma” and the term Dharma has been used in a very loose
sense to mean different things according the context in which it was used at any given point of
time. Over the years the term has acquired a definite religious connotation and is presently used
generally in the religious sense, so much so that to make a clear demarcation in its purely
temporal and its spiritual meaning has become extremely difficult, if not impossible. Be that as it
may, for our present purpose, the manner in which Bhishma describes Dharma in the Shanti
Parva of the Mahabharat gives the meaning of the term Dharma quite lucidly:

Tadrushoymanuprashno yatra Dhrama sudurlabhahDushkarah pratisankhyaatum

tatkenaatra vyavasyatiPrbhavaarthaaya bhutanaam dharmapravachanam
krtamDhaaranaat dharmamityaahurdharmena vighrutah prajaahaaYah
yaatprbhavasamyuktah sa dharma iti nischayah.

It is most difficult to define Dharma. Dharma has been explained to be that which helps the
upliftment of living beings. Therefore that which ensures welfare (of living beings) surely
Dharma. The learned rishis have declared that which sustains is Dharma.

Elsewhere, the Paraashar Smrti briefly but precisely explains the meaning of the term Dharma,
namely”.

Abhyuday-nisshreyase saadhanatvena dhaarayati—iti DharmaSa cha lakshana-

pramaanaabhyaam chodanaasutrairvyavasthaapitah.

Page 20 of 208
Dharma is that which sustains and ensures progress and welfare of all in this world and bliss in
the other world. The Dharma is promulgated in the form of commands.

And finally Manu forcefully impresses upon us, the all-important role of Dharma in our lives,
namely:
“Dharma eva hato hanti Dharmo rakshati rakshitahTasmaaddharmo na hantavyo maa
no dharmo hatovadheet.”

Dharma protects those who protect it. Those who destroy Dharma get destroyed. Therefore
Dharma should not be destroyed so that we may not be destroyed as a consequence thereof.

On this cautionary note of Manu, Justice Rama Jois, says “In the above shortest saying, the entire
concept of Rule of Law is incorporated.” However the concept of the Rule of Law as we
understand it in the modern sense, was clearly anticipated much earlier than the Manu Smriti, in
the Brhadaaranyaka Upanishad by the sage Yaajnyavalkya. It is thus clear that the term Dharma,
as it appears in the ancient texts, has been used in the sense in which we generally use the term
“Law” today, even though it was also used in its religious sense. However whenever we
encounter the term Dharma in classical literature its meaning usually becomes clear from the
context in which it is used in the given text.

The Sources of “Dharma” as Law:

Turning now to the Sources of this “Dharma” as propounded from time to time by scholars and
sages we find that generally, the legal literature which constitutes the original source of present
day Hindu Law, chronologically considered, falls under three distant epochs, namely.”
1. The Vedic epoch,
2. The period of the Dharmashaashtras, which itself can be subdivided into:
(i) The Sutra period,
(ii) The Smriti period,
3. The Post Smriti period.
According to Mahaamahopadhyaaya Dr. P. V. Kane, the Vedic epoch, during which the four
Vedas, the Braahmanas and some of the Upanishads were composed, was 4000 BC to 1000 BC.
However the Vedic Samhitas, Brahmanaas, Aaranyakas and the Upansihads are not of much use

Page 21 of 208
to us as a source of legal literature as the said three texts basically deal with such religious
sacrificial rituals as Yajna, Agnishtom, Darshapurnamaasa Ishti etc. Of course, in the Vedic
Samhitaas we do come across numerous references to different types of marriages, the rituals to
be performed for obtaining progeny, distribution of wealth, inheritance, stree dhan, shraaddha
etc. but we do not find a consistent, much less an exhaustive discussion on these various topics in
the Shrutis, which topics are extensively and consistently dealt with in the Dharmashaastras. The
Shruti texts are therefore not of much help to us as sources of positive law. Whatever few and
stray references we do find on secular topics are intermingled with ethical and religious matters.
However, the Sutra literature, the beginnings of which are placed by Dr. Kane at about 800 BC
to 500 BC are the first rich source of Hindu Law. The Sutras are mainly of three kinds namely;
i. Shrauta Sutras,
ii. Grhya Sutras, and
iii. Dharma Sutras.

It is the last of the said three kinds of Sutras which are mainly relevant for our purpose, as legal
literature constituting a source of law. The Shrauta Sutras mainly set out the various ritualistic
rules regarding the performance of Yajnas, whereas the Grhya Sutras deal mainly with familial
rituals. It is the Dharmasutras which set out in detail, and quite extensively, the rights and duties
of the individual as a constituent of the then Aaryan Society. It goes without saying that it is the
Dharma Sutras which are the best first source for us to trace the origins and development of the
various branches of Hindu Law.

The Dharma Sutras:

The three different kinds of Sutras mentioned hereinabove, together were known as “Kalpa” or
“Kalpa Sutras”. Normally such Kalpa Sutras are a part of one or the other of the Vedic branches
or “shakhas”. We find Kalpa Sutras belonging to the Aaapastambha, Baudhaayan and
Hiranyakeshi shakhas, all three of which come under the Yajurveda. However we do have other
ancient Dharma Sutras which do not have their corresponding Shrauta and Grhya Sutras.
Conversely in some cases we have extant Shrauta and Grhya Sutras but we do not find their
corresponding Dharma Sutras. For instance we have Shaankhyaaayan Shrauta Sutras and
Shaankhyaaayan Grhya Sutras but we do not have Shaankhyaayan Dharma Sutras. Simlarly

Page 22 of 208
though we have Aashwalaayan Grhya Sutras and Aashwalaayan Shrauta Sutras we do not have
Aashwalaayan Dharmasutras. The main Dharma Sutras extant are:
i. Gautam,
ii. Gautam,
iii. Baudhaayan,
iv. Aapastambha,
v. Hiranyakeshi,
vi. Vasishtha,
vii. Vishnu,
viii. Harita,and
ix. Shankha-Likhita (the hyphen between the words Shankha and Likhita is because the said
Dharma Sutra was composed by two brothers Shankha and Likhita jointly).

It needs to be stated here that even in the Dharma Sutras we do not find a systematic and
independent exposition of the various topics, as we find in the later Smritis. However the authors
of the Sutras do not claim a divine status for themselves in contrast to some of the Smritkaars
who ascribe divine origins to their Smritis such as is the case of Manu Smriti and Yaajnyavalkya
Smriti.

Of all the extant Dharma Sutras, Gautam Dharmasutra belonging to the Samveda, is probably the
oldest of the extant Sutras. The Sutra is in prose and deals with such secular legal topics such as
inheritance, partition and streedhan. It also deals with usages of traders, cultivators, herdsmen,
moneylenders and artisans etc. Hardatta has written an extensive commentary on the Gautam
Dharmasutra known as Mitaksharaa. One Maskari as well as one Asahaaya are also known to
have written commentaries on the Gautam Dharmasutra.

The Aapastambha Dharmasutra is probably the best preserved amongst all the extant
Dharmasutras. The Aapastambha Dharmasutra belongs to the Taittiriya Shakha of the Krshna
Yajurveda. Aapastambha deals with the law relating to marriage, inheritance and criminal law.
Hardatta has written a commentary on the Aapastambha Dharmasutra too, known as Ujjwalaa.
The Baudhaayan Dharmasutra also belongs to the Krshna Yajurveda. However the complete text
of this Dharmasutra has not yet become available. Dr. Kane places the Baudhaayan Dharmasutra
somewhere between 500 to 200 BC. He also mentions a commentary written on this

Page 23 of 208
Dharmasutra by one Govindaswamy. Baudhaayan deals with such issues as inheritance, sonship,
adoption and marriage. Interestingly enough, Baudhaayan in (2.2.31) mentions that when a
woman whose husband is either impotent or is ostracised remarries, her son from such a
remarriage is known as “paunarbhav”, thus clearly referring to remarriage.

The other great sutrakaar is Haarit who is extensively quoted by Baudhaayan, Aapastambha and
Vasishtha, which clearly indicates that he is older than the said three sutrakaars. As pointed out
by Mullah, in his “Principles of Hindu Law”, a verse ascribed to Haarit clearly shows the stage
of progress that Hindu Law had made even during the first period of the era of the
Dharmashaastras, namely “When a defendant avers that the matter in controversy was the subject
of a former litigation between him and the plaintiff, when the latter was defeated, the plea is a
plea of former judgment—prag nyaaya. This is similar to the doctrine of res judicata as we know
in modern jurisprudence.
The Vasishtha Dharmasutra is another important sutra, of which no Grhya or Shrauta sutras are
extant. In fact not much of this Dharmasutra itself is extant. The Vasishtha Dharmasutra was
mainly followed by the Rgvedis, however Kumarila in his Tantravaartika, which is a
commentary on the Purva Mimamsa Sutra of Jaimini, says that it was considered as authoritative
by all the Vedic Shakhas/Charanas. Vasishtha also touches upon the issues of rules of marriage,
kinship, adoption and inheritance, apart from the issue of jurisdiction of law.

The Vishnu Dharmasutra is another Sutra which is considered important by modern

commentators on Hindu Law. Dr. Kane says that the Vishnu Dharmasutra is closely connected
with the oldest branch of the Yajurveda namely the Katha Shaakhaa. Mullah however, says that
the Vishnu Dharmasutra copiously borrows from the Manusmriti. This sutra deals with the rules
of civil as well as criminal law, inheritance, marriage, debt, interest, treasure trove etc. Mullah
mentions a commentary written on the Vishnu Dharmasutra by Nandapandit by the name of
Vaijayanti. However Dr. Kane hints at the possibility of a commentary written by Bhaaruchi on
this sutra.

Apart from the above sutrakaars Dr. Kane mentions the following, about whom or as to the
contents of their works precious little is known, namely:
1. Atri,

Page 24 of 208
 2. Ushanas (Shukra),
3. Kanva and Kaanva,
4. Kashyap and Kaashyap,
5. Gaargya,
6. Chyavan,
7. Jaatukarnya,
8. Devala,
9. Paithinasi,
10. Budha,
11. Brhaspati,
12. Bhardwaaja and Bhaaradwaaja,
13. Vaikhaanas,
14. Shaataatapa,
15. Sumantu,
From here we move on to the next epoch, namely the Smriti period or the period of the
Dharmashaastras, which by far was the most productive period of the development of Hindu
Law. In fact Mullah calls the era of the Dharmashaasras as the golden age of Hindu Law.8
However, before we take a brief overview of this period and the works that were
composed/compiled during this period, it is necessary to refer to a work of utmost importance
namely the Arthashaastra of Kautilya.

The Arthashaastra of Kautilya:

It is now generally and firmly accepted by tradition that the Arthashaastra was written by
Chaanakya whose praenomen was Vishnugupta. The work is not traditionally treated as a
Dharmashaastra, which in my humble opinion is wrong because it deals with all the major issues
and topics that fall under the scope of the Dharmashaastras. It is true that hardly anything that
can be termed as “spiritual” or “religious” is to be found in the Arthashaastra and the discussions
and the topics dealt with therein are by and large secular, but that in my opinion is all the more
why it should be considered as a part of the Dharmashaastra literature as it comes nearest to a
modern treatise on secular law. By not treating the Arthashaastra as a Dharmashaastra merely
because it eschews any discussion on topics which are purely of a religious nature, such as
various rituals or karmakaanda, we are unwittingly perpetuating the tradition of restricting the

Page 25 of 208
meaning of the term Dharma and equating it with religion. Be that as it may, the date of the
Arthashaastra can be placed with certainty at around 325 to 300 BC i.e. the date of Alexander’s
invasion of India. Kautilya or Chaanakya or Vishnugupta are generally accepted to be the names
of the same person who was the mentor of Chandragupta Maurya and the first Amaatya of
Chandragupta, after his ascension to the Magadha throne, before Chaanakya eventually managed
to bring back Amaatya Subandhu Raakshas, the erstwhile Amaatya of the Nandas. Interestingly
enough, the text/manuscript of the Arthashaastra was not available for our benefit till about the
year 1909 when it was published from an old manuscript by R. Shaamshaastri from Mysore. Till
then, it was known only through its quotations as appearing in various old works, including the
“Indica” of Megasthenes and a commentary on the Arthashaastra by the name of “Nitisaar”
written by Kaamandak. The Arthashaastra throws a flood of light on a number of matters of
administration, internal and foreign, civil, military, commercial, fiscal and judicial. Specifically
adhikaran III deals with Dharmasthiya which is concerning “law” as we understand it in the
modern sense. Interestingly enough Kautilya speaks of remarriage of a widow, albeit on certain
limited grounds. But what is important is that the decision to remarry is left to the widow and
there is no absolute ban on remarriage of widows which was a later development.9 Kautilya
extensively discusses such topics such as types of marriages, divorce, inheritance, partition of
property, entering into of contracts; their breach etc. Adhikaran IV deals with matters affecting
administration of justice such as measures to suppress disturbance of peace, crimes and
punishments etc. The Arthashaastra encompasses within its scope such diverse subjects as
municipal administration; co-operative undertaking; juvenile delinquency; investigation in case
of sudden or unnatural death; vagrancy; superintendence of slaughter houses; liquor shops;
gambling dens; regulation of prostitution and welfare of old prostitutes; issuance of passports;
excise, octroi; rules governing employment of labour and payment of wages etc. and this is not
an exhaustive list. A mere reading of the index of the work takes one’s breath away due to the
sheer range of subjects and topics that are discussed. The entire work is by and large in prose,
however there are a few verses too.It is therefore submitted that the Arthashaastra is an
extremely important milestone in the development of Hindu Law or law in general in India.

The Period of the Smrti and Dharmashaastra Literature:

The Smriti period, as already stated earlier, was the most productive period when both
substantive and procedural law in India came to be organised and unified. Both, substantive law

Page 26 of 208
which came to be known as Vivaada and procedural law known as Vyavhaara came to be clearly
demarcated and extensive literature arose on both the said branches of law during this period.
The major Smritis composed and compiled during this period were as follows:

i. Manusmrti;
ii. Yaajnyavalkya Smrti;
iii. Narada Smrti;
iv. Praashar Smrti;
v. Kaatyaayan Smrti.

Apart from the above Smrtis Dr. Kane also mentions a Brhaspati Smrti, however the same is not
extant. It shall now be pertinent to consider the above referred Smrtis and especially the first two
namely (i) Manusmrti and (ii) Yaajnyavalkya Smrti in some detail. However Yaajnavalkya
mentions twenty smrtis all bearing the names of the rshis to whom is ascribed their respective
authorships, namely, Manu, Atri, Vishnu, Haarita, Yaajnyavalkya, Ushanas, Angiras, Yama,
Aapastambha, Samvarta, Kaatyayana, Brihaspati, Paraashara, Vyaasa, Shankha, Likhita, Daksha,
Gautama, Shaataatapa and Vasishtha, who are referred to as the founders of the
Dharmashaastras. Kamalaakar Bhatta in his Nirnaysindhu mentions over 100 smrtis, many of
which have never been found.

Manusmrti
In the Taittiriya Samhita Manu is referred to as the first among humans from whom the human
race traces its descent “Maanavyo hi prajaah”. Manu is also referred to in the Regveda,
taandyamahaabraahmana, Aitareya Braahmana, Shatapatha Braahmana and also the Nirukta of
Yaaska. Gautam, Aapastambha, Vasishtha have all referred to Manu in their Sutras. The
Mahaabhaarata mentions Manu at many places. However we come across many Manus such as
Vaivasvata Manu, Praachetas Manu, Swaayambhuva Manu, Vrddha Manu and so on. It is
therefore difficult to establish the identity of the Manu to whom we can ascribe the present
Manusmrti. However Dr. Kane rightly places the composition of the Manusmrti in its present
form, to somewhere between 200 BC to 200 AD. This shows that the Manusmrti was compiled
in its present form, at least a century later than the Arthashaastra, which therefore predates the
Manusmrti by at least a hundred years. This also establishes beyond reasonable doubt that the

Page 27 of 208
Manusmrti has borrowed extensively from the Arthashaastra, especially in case of civil law
where the contents of both are almost identical. The Manusmrti itself however explains its
origins by stating that from Brahmadeva the Viraats were created and thereafter Manu was
created and it was from Manu that the Rshis Bhrgu, Narada and others descended. Brahmadeva
taught this Dharma to Manu and Manu in turn taught this Dharma to ten Rshis. Later on when
some of the Rshis approached Manu and asked him about the duties of the people of the four
varnas, Manu sent them to his disciple Bhrgu and the shaastra taught by Bhrgu to these Rshis is
the present Manusmrti. The present Manusmrti comprises of 12 adhyaayas and 2694 shlokas.
There are some references to Manavdharmasutras, however no such sutras are extant. But as
Manav Grhyasutras and Manav Shrautasutras are extant it is generally believed that a
Manavdharmasutra must have been there in order to constitute a complete Kalpa Sutra of Manu.
Max Muller as well as Weber were both of the view that such a Manav Dharmasutra actually
existed and that the present Manusmrti has been compiled on the basis of such a Maanav
Dharmasutra. However Dr. Kane categorically holds that no historical evidence is available to
support this view.

The Manusmrti enjoys the pride of place amongst the entire smrti literature. In the words of
Mullah “All the smrtis in the course of time came to be regarded as of universal application. No
greater authority was attached to one than to another Smrti, except in case of Manusmrti which
was received as of the highest authority.” For our purpose however, suffice it to state that it was
in the Manusmrti for the first time that we find a clear demarcation/classification of law under
various heads or sections, which is found in the eighth of the twelve adhyaayas. The Manusmrti
divides substantive law or vivaada into 18 different sections namely:

(i) Rnaadaana—Failure to pay debts;

(ii) Nikshepa—Deposit and pledge;
(iii) Asvaamivikraya—Sale without ownership;
(iv) Sambhuyasamutthaana—Partnership;
(v) Dattaanapakarma—Resumption of gifts;
(vi) Vetanaadana—Failure to pay wages;
(vii) Samvidyatikrama—Breach of Contract;
(viii) Krayavikryaanushay—Rescission of sale or purchase;
(ix) Swaampaalavivaada—Disputes between owners and keepers of cattle;

Page 28 of 208
 (x) Seemaavivaada—Boundary disputes;
(xi) Dandapaarushya—Physical assault;
(xii) Vaakpaarushya—Verbal assault;
(xiii) Steya—Theft;
(xiv) Saahasa—Voilent crimes;
(xv) Streesamgrahana—Sex crimes;
(xvi) Streepumdharma—Rules for husband and wife;
(xvii) Vibhaaga—Partition and inheritance;
(xviii) Dyutaahvaya—Gambling and betting;

The above classification of substantive law into 18 sections made for the first time by the
Manusmrti has thereafter been followed by the subsequent Smrtis. The reason why the
Manusmrti enjoys such pre-eminence amongst all the smrtis is aptly explained by Mullah thus
“The extant Code of Manu compiled in about 200 BC was obviously an answer to a long felt
desideratum because the legal literature of the Dharmashaastra period had not produced any
work which could meet the requirements of a compendium of law in all its branches. The unique
position acquired by it as the leading Smrti and effectually of the most authoritative reservoir of
law was due both to its traditional history and the systematic and cogent collection of rules of
existing law that it gave to the people with clarity and in language simple and easy of
comprehension.”13 It is in the Manusmrti for the first time (the only exception being the
Arthashaastra) that we find a systematic exposition of the various branches of law. Manu
believes that the Rule of Law in the true sense prevails only due to the fear of Danda in the sense
of the coercive sanction of power behind the authority of the State/king. In VII.Manu holds to the
effect that:
Sarvo dandajito loko, durlabho hi shucirnarah,Dandasyahi bhayaatsarvam
jagadbhogaaya kalpate

“There is hardly an individual in this world, who, on his own is pure in his conduct. The
king’s (sovereign’s) power to punish, keeps the people n righteous path. Fear of
punishment (by the king) only yields worldly happiness and enjoyment.”

Page 29 of 208
A number of commentaries were written on the Manusmrti in the post Smrti period. Some of
them as are discussed below.

Of all the commentaries on the Manusmrti three commentaries are of utmost importance namely
(i) Manubhaashya of Bhatta Medhaatithi, (ii) Manvarthamuktaavali of Kulluka Bhatta and (iii)
Manutikaa of Govindaraaja.

Bhatta Medhaatithi’s Manubhaashya is a very learned commentary on the Manusmrti. He was an

eminent scholar steeped in the Purvamimaamsaa. He quotes repeatedly from Jaimini’s
Mimaamsaa Sutras and uses the same for interpretation of the Smrti texts. Dr. Kane states that it
appears from various references to Medhaatithi and his quotes appearing in other commentaries
that he had probably written an extensive commentary in verse touching upon the various
branches of law, which however is not available at present. Dr. Kane further observes that as
Medhaatithi refers to Asahaaya and Kumarila, he must have lived after 820 AD but not later than
1050 as Vijnaneshwara mentions him as an authority in his Mitaaksharaa. Dr. Jolly is of the
opinion that Medhatithi was from the south whereas Bulher is of the opinion that he was from
Kashmir. Dr. Kane agrees with Bulher that Medhaatithi was from Kashmir due to the numerous
internal references in the Manubhaashya. Mullah is of the view that,“As a rule Medhaatthi’s
interpretations and comments are instructive and dependable although sometimes he indulges in
caustic subtlety as for instance he explains away the oft-quoted verse of Manu permitting
remarriage of a widow. This is not to disparage the merit of his work which is copiously
informative and a landmark in the legal history of Hindu Law.”

The other important commentary on the Manusmrti is Manvarthamuktaavali of Kulluka Bhatta.

Kulluka says that he belonged to a Varendra Braahman family and that he came from Gaud i.e.
Bengal and his village was nanda. Dr. Kane says that Kulluka Bhata’s commentary is not
original but is based entirely on the Manubhaashya of Medhaatithi and Govindaraaja’s
Manutikaa. However in his commentary he does not make any mention of either of them.
According to Dr. Kane Kulluka therefore lived somewhere between 1150 AD to 1300 AD and he
wrote his commentary somewhere around 1250 AD.

Page 30 of 208
The third important commentary on the Manusmrti is the Manutikaa of Govindaraaj, who was a
learned Brahmin residing on the banks of the Ganges. According to Dr. Kane Govindaraaj lived
before 1135 AD. According to Mullah the Manutikaa despite some lapses gives a faithful
explanation of the texts of the smrtis and is a reliable commentary. There is not much subtlety,
but there is depth. He is patiently analytic and pedestrian but sound in exposition. Dr. Kane also
mentions other commentaries on the Manusmrti by Raaghavaananda, Naaraayan, and Nandan.

Yaajnyavalkya Smrti

The author of the Yaajnyavalkya Smrti is believed to be the great Vedic Rshi of the same name
and to whom is ascribed the authorship of the Brhadaaranyak Upanishad, which is closely
connected with the Shukla Yajurveda and its Vaajasaneyi Smhitaa. Dr. Kane dates the
Yaajnyavalkya Smrti between 100 BC to 300 AD. He further mentions that there are a number of
similarities in the contents of the Yajnyavalkya Smrti and the Vishnu Dharmasutra, similarly
there are similarities between this smriti and the Arthashaastra and states that the Yaajnyavalkya
Smrti has borrowed extensively from the Arthashaastra. It is also obvious that the Yaajnyavalkya
Smrti was composed much later than the Manusmrti. Yaajnyavalkya Smrti has 1003 to 1006
Shlokas.
The Yaajnyavalkya Smrti and the commentaries on it have laid the foundation of the prevalent
Schools of Hindu Law. Yaajnyavalkya is much more concise compared to Manu and that is why
Yajnyavalkya states pithily in 1000 odd shlokas which it took Manu almost 2700 shlokas to say.
According to Mullah “The Code of Yaajnyavalkya is in the main founded on Manusmrti but the
treatment here is more logical and synthesised. On a number of matters and particularly on the
question of status of shudras, of women’s right of inheritance and to hold property and of
criminal penalty, Yaajnyavalkya although a follower of conventional conservatism is decidedly
more liberal than Manu.”16 The Yaajnyavalkya Smrti also deals more elaborately with the rules
of procedure and evidence compared to the Manusmrti, clearly signifying that by the time this
Smrti was compiled/composed procedural law (vyavahaara) had made considerable progress.
Mullah notes in his footnote on page 27 of his above referred work that “For instance, the verses
relating to partition per stirpes between the members of different branches of a joint family.
Division of property rebus sic stanti bus is implicit in those rules. Also the rule about priority of
the title in case of successive hypothecations or sales II, 23. And the rule about the attainment of

Page 31 of 208
shares of partners II, 259.” Apart from the fact that the punishments prescribed by Yaajnavalkya
are less harsh than those prescribed by others, Yaajnyavalkya is also more liberal when it comes
to the rights of women and those of the shudras. He deals with various subjects and elaborately
and exhaustively deals with the law of mortgages and hypothecation. Regarding partnerships and
association of persons in joint business ventures Vijnaaneshwara in his Mitaaksharaa, which is a
commentary on the Yaajnyavalkya Smrti, states “A number of traders, carrying on a trade for
making profit, shall share profit and loss according to their respective shares, or according to the
compact made between themselves. If any member of a company does an act, which is forbidden
by the general body, or without their permission or negligently, and thereby causes a loss, he
shall have to indemnify the others for the same.”17 Yaajnyavalkya endorses the rule of pleading
which insists upon all material facts on which a party relies being set out in his statement of
claim or defence—“that which is not alleged does not in the eye of the law exist even though as a
matter of fact it might so exist.” There are many commentaries on the Yaajnyavalkya Smrti some
of which we shall now consider briefly.

The most celebrated and well known of the commentaries on the Yaajnyavalkya Smrti is the
Mitaakshraa of Vijnaneshwara which holds unchallenged sway over the whole of India except
Bengal where the Daayabhaaga school of Hindu Law prevails. The Yaajnyavalkya Smrti has
acquired a pre-eminence as a source of Hindu Law because of the edifice of Mitaaksharaa built
over it by Vijnaaneshwara. Vijnaaneshwara’s commentary is also known as Rjumitaaksharaa or
Pramitaaksharaa. The Mitaaksharaa encompasses within its scope an exhaustive exposition of the
Dharmashaastras of the preceding 2000 years, according to Dr. Kane. In the concluding verse of
his Commentary Vijnaaneshwara mentions his name as Vijnyaanyogin and his gotra as
Bhaaradwaaj and his father’s name as Padmnaabhabhatta. Accordng to Dr. Kane as the
Mitaaksharaa refers to Vishwarupa, Medhaatithi and Dhaareshwar, it was written somewhere
after 1050 AD. Similarly as the Kalpataru of Laxmidhar which was written in the second decade
of the 12th Century, mentions the Mitaaksharaa, it was written not later than 1120 AD. The
Mitaaksharaa comprehensively deals with almost all the important topics of the law and
synthesises the various smrti texts. The Mitaaksharaa is accepted as a supreme authority
throughout India except in Bengal where the Daayabhaaga school prevails. But even in Bengal
the Mitaaksharaa is equally revered though not necessarily followed. Nevertheless where there is
no conflict between the Mtaaksharaa and the prevailing school the Mitaaksharaa is followed

Page 32 of 208
even in Bengal. According to Mullah, the Mitaaksharaa is more of a digest than a mere
commentary on a particular smrti, we find the quintessence of the smrti law and its precepts and
injunctions. The Privy Council observes that the smrti “explains the meaning of recondite
passages, supplies omissions and reconciles discrepancies by frequent references to other old
expounders of law.” The Mitaksharaa is the grand edifice of Hindu Law which Vijnyaaneshwara
built on the bedrock of the Yaajnyavalkya Smrti. The Mitaaksharaa has given rise to the most
preeminent school of Hindu Law which holds unchallenged sway over the whole of India except,
as stated earlier, in Bengal. However the application of the Mitaaksharaa is not absolutely
uniform over the whole of the country but has given rise to four sub-schools which prevail over
different regions namely (i) The Benares School which holds sway over almost the whole of
North India, except the Punjab where the law has been considerably modified on certain points;
(ii) The Mithila School which prevails in Tirhoot and certain districts in Northern Bihar; (iii) The
Maharashtra or Bombay School which prevails over the whole of the erstwhile province of
Bombay and also Berar and (iv) The Dravid or Madras School which covers Southern India and
the whole of the erstwhile Presidency of Madras. The said sub-schools differ from each other in
some matters of details relating particularly to adoption and inheritance. As Mullah notes, all
these schools acknowledge the supreme authority of the Mitaaksharaa, but they give preference
to certain treatises and to commentaries which control certain passages of the Mitaaksharaa.
However in the region of Gujarat, the island of Bombay and North Konkan the Vyavahaara
Mayukha of Neelakantha Bhatta is granted equal authority and in some cases is considered an
overruling authority. The Mitaaksharaa has held a place of pre-eminence for over 9 centuries in
the maters of law, which itself speaks volumes about the extraordinary merit of the work. Mullah
compares Vijnaaneshwara with confucious and calls him one of the greatest juristheologians who
contributed to the making and development of Hindu law. The authority of the Mitaaksharaa is
so great that there have been commentaries written on the Mitaaksharaa such as the Subodhini by
Vishweshwar Bhatta, the Baalambhatti or Laxmivyaakhyaan by Baalambhatta and a commentary
by Nandapandit. Nandapandit’s commentary has been mentioned by the Privy Council in a case,
but the work, it appears has not been published. Thus due to the Mitaaksharaa the Yaajnavalkya
Smrti acquired pre-eminence in the development of Hindu law.

The other commentary on the Yaajnyavalkya Smrti is the Baalakridaa by Vishwarupa.

Vishwarupa and the famous disciple of Adi Shankara namely Sureshwaraachaarya are

Page 33 of 208
considered to be one and the same. Hence it is believed that Vishwarupa is believed to have lived
around 800 to 825 AD.Mitramishra another eminent scholar has written a commentary on the
Yaajnyavalkya Smrti known as Viramitrodaya. This commentary is well documented with
references to most of the earlier Shaastrakaaras. The Viramitrodaya has been cited by the Courts
in India in innumerable cases wherever the Mitaaksharaa prevails. The Privy Council has
observed “it supplements many gaps and omissions in earlier commentaries and illustrates and
elucidates with logical preciseness the meaning of doubtful prescriptions.” According to Mullah,
Mitramishra is the last of the outstanding commentators who give reliable and authoritative
guidance on Hindu Law.The other well known commentary on the Yaajnyavalkya Smrti is that
of the king of the Shilaahaar dynasty Aparaarka who has written his commentary by the name of
Yaajnyavalkya Dharmashaastra Nibanddha. In the Nibanddha, we find extracts from a number of
Smrtikaaras whose works are not available to us in their entirety. In the concluding portion of his
work Aparaarka refers to himself as Jimutavaahanaanvayaprasut and thus traces his ancestry to
Jimutavaahan. Vishweshwara Bhatta the author of Subodhini, a commentary on the
Mitaaksharaa has used Aparaarka’s work. Aparaarka is placed about a century later than
Vijnyaaneshwara.

Apart from the above important works which are direct commentaries on the Yaajnyavalkya
Smrti there are other works which are referred to and accepted as authorities by the
Shaastrakaaras as well as the Law Courts especially where the various sub-schools of the
Mitaaksharaa prevail. For instance the Vaijayanti and Dattaka Mimaamsa of Nandapandit are
accepted where the Benares School prevails. The Viramitrodaya of Mitramishra is accepted as an
authority in Punjab. The Nirnayasindhu and Vivaadataandava of Kamalaakara Bhatta is again
accepted as an authority by the Benares School. Kamalaakara is accepted as an authority on
questions relating to ceremonies and inheritance. The Vivaada Chintamani and Vyavahaara
Chintamani of Vaachaspati Mishra, the Vivaada Ratnaakara of Chandeshwara and the Madana
Paarijaat of Vishweshwara Bhatta are all accepted as authorities by the Mithilaa School of
Mitaaksharaa. The other works accepted by the Mithila School are the Vivaadachandra of
Laxmidevi, the Kalpataru by Laxmidhara, the Smrtisaar of Shrikaraachaarya, another Smrtisaara
of Harinaath Upaadhyay. The Baalambhatti or Laxmivyaakhyan of Baalambhatta is accepted as
an authority by the Bombay (Maharashtra) School, so also the Samskaara Kaustubh and the
Subodhini.

Page 34 of 208
The fourth School of Mitaaksharaa is the Dravid or Madras School. This school accepts the
authority of the Smrtichandrikaa of Dvannabhatta. This work was compiled somewhere during
the early period of the great Vijayanagar Empire. Devanna Bhatta refers to and quotes
extensively from the Kaatyayana and Brhaspati Smrti. Its authority is accepted as next to the
Mitaaksharaa in Southern India. The Smrtichandrikaa is quoted extensively by writers after the
twelfth century and is considered by the Courts as a valuable source of Hindu Law. Thus the
Yaajnyavalkya Smrti and the Mitaaksharaa constitute the most comprehensive source of present
day Hindu Law.

Naarada Smrti

Naarada Smrti also known as Naaradiya Dharmashaastra was composed by one Naarada who is
placed by Dr. Kane somewhere between 100 AD to 300 AD. The Naarada Smrti consists of
about 1028 shlokas and it appears to have been compiled in Nepal, as its oldest manuscript was
found in Nepal, however nothing can be said with certainty on this aspect. The Naarada Smrti
deals with the rules of procedure, pleading and evidence or what is known as Vyavahaara and
not substantive law or Vivaada. For instance Naarada speaks of the Plaint as the essence of the
law suit and insists that it must disclose a proper cause of action. He also clearly prescribes that
the Defendant after having become aware of the contents of the Plaint shall submit his reply. The
reply of the Defendant must be fourfold namely, denial, confession, special plea, if any and a
plea of former judgment. He provides that before the Defendant submits his reply to the Plaint
the Plaintiff can amend his Plaint. About the burden of proof he says that what the Plaintiff has
stated in his plaint he must prove by adducing evidence. But as stated earlier the emphasis of this
smrti is on procedural law and not substantive law. One Asahaaya is credited with having written
a commentary on the Naarada Smrti by the title Naaradabhaashya. Dr. Kane mentions about a
commentary on the Naarada Smrti by one Asahaaya.

Paraashara Smrti

Yaajnyavalkya in his enumeration mentions Paraashar as one of the ancient Dharmashaastrakars,

which is indicative of the fact that the Paraashar Smrti is older than Yaajnyavalkya Smrti.
However the Parashaar Smrti itself mentions the Yaajnyavaklya Smrti which clearly means that

Page 35 of 208
the present Paraaashar Smrti is a revised version of the original. The extant Paraashar Smrti is
divided into 12 adhyaayas and 592 shlokas. The Paraashar Smrti is a major and important smrti
after the Yaajnyavalkya Smrti. Dr. Kane points out that Paraashar repeatedly quotes Manu which
means that this Smrti must have been compiled somewhere between 100 AD to 500 AD. Dr.
Kane also mentions that the later commentaries of the post smrti period such as Mitaakshaaraa
and Aparaarka’s commentary “Aparaarka Yaajnyavalkya Dharmashaastra Nibandha” on the
Yaajnyavalkya Smrti quote from the Paraashar Smrti and the quotations are found in the extant
text of this Smrti, which indicates that this Smrti came to be recognised as an authoritative
Dharmashaastra.

The most celebrated commentary on the Paraashar Smrti is that of Madhvachaarya known as
Paraashar Maadhaviya. The Paraashar Maadhaviya is accepted as an authority of great purport in
South India and is rated higher even above the Smrtichandrikaa. Madhvaachaarya was a great
thinker, philosopher whose post sanyaasa name was Vidyaaranya and who was the Kulaguru of
the founding dynasty of the Vijayanagar Empire. His father’s name was Maayannaa and
mother’s name was Shrimati. Dr. Kane is of the view that the Paraashar Maadhaviya and the
other works of Madvachaarya were written somewhere between 1135 to 1360 AD. Apart from
the Paraashar Maadhaviya the other works which are accepted as authorities in Southern India
are the Saraswati Vilaasa of Prataaparudradeva, the Nirnayasindhu of Kamalaakar Bhatta and the
Subodhini of Vishweshwara Bhatta.

The Daayabhaaga School of Hindu Law

As we have seen in the previous parts, the Mitaaksharaa prevails over the whole of India except
the province of Bengal. Even in Bengal the Mitaaksharaa is held in great esteem, however it is
the Daayabhaaga School of Hindu Law which prevails and overrides the Mitaaksharaa. The
founder of the Daayabhaaga school was Jimutavaahana. Accordng to Golap Chandra Sarkar,
Jimutvaahana was the seventh in the line from Bhattanaaraayana, who, along with 4 other
Brahmins were brought to Bengal from Kanauj by the then King Aadisura of Bengal, as he did
not have any Brahmins to perform the Vedic rituals there. Sarkar, quoting from the Kulakaarikaa
of Edumishra, states that Bhattanaaraayana belonged to the Shaandilya gotra. Bhattanaaraayana’s
grandson Bhadra or Manibhadra became Jagadguru and lived in Paari village. Bhadra’s great

Page 36 of 208
great grandson Chaturbhuja had two sons Bilvamangala and Jimut. Jimut excelled in all subjects
and eventually became a Minister and Chief Justice during the reign of Vishvaksena. In order to
establish right conduct among the people and remove any uncertainty Jimut composed the digest
Daayabhaaga. Ludo Rocher places Jimutvaahana not earlier than C.E. 1100 21. Dr. Kane also
places him between 1100 to 1150 AD.

The three works attributed to Jimutvaahana are (i) Kaalaviveka, (ii) Daayabhaaga and (iii)
Vyavahaaramaatrkaa. The word Daaya according to Dr. Kane means ancestral property and
Daaya-Bhaaga means distribution or partition of the property. On the definition of Daayabhaaga,
Narada says “When sons proceed to a partition of their paternal property, this constitutes the
head of litigation which the experts called Daayabhaaga.”22 The Dharmashaastras mentioned in
the Daayabhaga are (i) Yaajnyavalkya, (ii) Vishnu, (iii) Narada, (iv) Brhaspati, (v) Kaatyaayana
and (vi) Vyaasa. According to Dr. Kane, the Daayabhaaga School of Hindu Law is propounded
mainly in three works namely (i) Daayabhaaga of Jimutvaahana, (ii) Daayatatva of
Raghunandana and (iii) Daayakramasamgraha of Srikrishna Tarkaalankaar. Rocher however
gives the following chronology of the commentators on the Dayabhaaga, namely:

i. Daayabhagatippani of Shrinaatha Aachaaryachudaamani—1475 to 1525 AD;

ii. Daayabhaaga Siddhaantakumudchandrikaa of Achyutananda Chakravartin—1510 to
1570 AD;
iii. Daayabhaaga Vivrtti of Raamabhadra-I (Nyaayaalankaar Bhattaachaarya)—1510 to
1580;
iv. Daayabhaagatikaa of Raamabhadra-II;
v. Daayabhaaga Vyaakhyaa of Raghunandana Bhattaachaarya—1510 to 1580;
vi. Daayabhaaga Tikaa of Maheshwara Bhhataachaarya—1530 to 1600;
vii. Daayabhaaga Prabodhini of Shrkrishna Tarkaalankaar—1750;
viii. Daayabhaaga Tikaa of Krishnakaanta (Vidyaavaagisha Bhattaachaarya)—1825;23.

Dr. Kane says that Jimutvaahana’s works can be dated between 1090 to 1130 AD. Thus the
Daayabhaaga School of Hindu law is later than the Mitaaksharaa and in fact replaced the
Mitaaksharaa School in Bengal. This is clearly mentioned by Justice S. C. Mookerjee in his
Judgment in the case of Pitambar Chandra Saha v. Nishi Kant Saha [C.W.N. (1919) 214, 215,

Page 37 of 208
218]. According to Rocher, the earliest reference to the Daayabhaaga in English are to be found
in William Jones’ letter dated 24th October 1786, in the ideal digest of Hindu Law in which
Jones wished to see included “Jimut Bahun, the best book on inheritance (Cannon 1970: 722)”.
The later reference in English is in the First Volume of the Asiatic Researches, 1788, “On the
literature of the Hindus, from Sanskrit, communicated by Goverdhan Caul, with a short
commentary.” Goverdhan Caul was one of the two pandits attached to the Supreme Court
of Calcutta.

Points of Differences between the ‘Mitaaksharaa’ and ‘Daayabhaga’ Schools:

As Rocher notes that “Jimutvaahana and Vijnyaneshwara both commented on the same body of
smrti literature yet they came to very different conclusions. There are two main underlying
reasons for their differences. First, the author of the Mitaksharaa holds that any member, at least
any male member of a Joint Hindu family becomes an undivided co-owner of the joint family
estate by the mere fact of being born into the family. Jimutvaahan on the other hand starts from
the premise that no member of the joint family has any proprietary right whatever unless and
until the prior owner of the estate dies or becomes incapacitated. Second, both schools establish
different, though not fundamentally different orders of succession, based on divergent
interpretation of the term pinda in the ancient texts on Dharma.” “Sapinda”according to
Mitaaksharaa, means a person connected through the same pinda or body; according to the
Daayabhaaga however, it means a person connected with the same pinda or the funeral cake
presented to the manes of ancestors at the Parvana Shraaddha ceremony.

The major difference between the Mitaaksharaa and the Daayabhaaga Schools is regarding the
shares of coparceners at the time of partition. According to the Mitaaksharaa, no individual
member of a family, as long as its status remains undivided, can claim that he has a certain
definite share, one third or one fourth. Partition according to the Mitaaksharaa law, consists in
ascertaining and defining the shares of the coparceners, in other words it consists in a mere
numerical division of the property which determines the proportion of each coparcener’s share in
the property. On the other hand according to the Daayabhaaga law each coparcener has and can
have a certain and definite share in the joint property, of which he is the absolute owner, even
while the family remains undivided. In other words even when each of the coparceners holds a
defined share in the joint property the property is in the joint possession of the whole family.

Page 38 of 208
According to both, the Mitaaksharaa as well as the Daayabhaaga law the real test of partition lies
in the intention of the parties to separate. However, whereas under the Mitaaksharaa such
intention can be expressed in the form of a mere agreement between the coparceners to hold and
enjoy the joint property in defined shares as separate owners, under the Daayabhaaga law there
has to be a physical separation of shares and an assignment to each coparcener of specific
portions of the joint property.

First and foremost it needs to be noted that even though a joint Hindu family consists of all
persons lineally descendent from a common ancestor and includes their wives and unmarried
daughters, a Hindu Coparcenary is a much narrower body than a joint family. According to the
Mitaaksharaa law a coparcenary includes only those persons who acquire by birth an interest in
the joint or coparcenary property. Further, a coparcenary is formed, under the Mitaaksharaa law
by the male lineal descendants within four degrees counting from and including the common
male ancestor. However the conception of a coparcenary and of coparcenary property according
to the Daayabhaaga is entirely distinct from that according to the Mitaaksahraa law. According
to the Daayabhaaga, sons do not acquire any interest by birth in ancestral property. A son’s right
arises for the first time on the death of the father. On the father’s death the sons take such
property as is left by him, whether separate or ancestral, as heirs and not by survivorship. Since
the sons do not take any rights in the ancestral property during the lifetime of the father, there
can be no coparcenary in the strict sense of the term between a father and his sons according to
the Daayabhaaga. A father under the Daayabhaaga law therefore has absolute power to dispose
of ancestral property, whether moveable or immoveable, in any manner he deems fit.

However, by far the most significant difference between the Mitaaksharaa and the Daayabhaaga
laws is regarding the rights of women in inheritance. The first and foremost difference is that,
whereas under the Mitaaksharaa a coparcenary consists of only male lineal descendants and as
only coparceners can demand and enforce a partition of the ancestral joint family property; under
the Daayabhaaga law even women can be coparceners and as such are entitled, equally with the
other male members, to demand and enforce partition of the joint family property. This is not to
say that under the Mitaaksharaa women had no right to inheritance whatsoever but such as it
was, was limited. In any case as women could not be coparceners they had no right to demand
and enforce partition. This was indeed an exemplary and beneficial feature of the Daayabhaaga
law from the stand point of women’s proprietary rights. Further, under the Daayabhaaga law the

Page 39 of 208
widow succeeded the father’s property rights on his death, even in cases where he held property
jointly with his brother. However, such a beneficial provision in favour of women gave rise to an
altogether unintended and deadly consequence in the province of Bengal, where the
Daayabhaaga system prevailed. It was not a coincidence that the Petition for a law banning the
custom of sati came from Raja Ram Mohun Roy of Bengal. In his Petition to the then
Government seeking a ban on sati Roy specifically mentions the most important ground namely,
that as the heirs and members of a woman’s immediate family tend to gain from her death, these
members and heirs take the lead to “persuade” these hapless widows to immolate themselves on
their husband’s funeral pyre.26 It was therefore no surprise that the largest number of satis were
recorded in the province of Bengal. The reason was that sati was a very convenient ploy by
which women could be effectively eliminated from the list of sharers in the joint family/ancestral
property in which the Daayabhaaga had granted them rights as coparceners, and because of
which they could demand and enforce partition of joint family property. This only shows our
propensity as a society to defeat the very purpose of any beneficial legislation so as to deprive its
benefits for the very section of the people for whom it is passed in the first place. Be that as it
may, it cannot be denied that Jimutvaahana and his Daayabhaaga school of Hindu Law to a great
extent upheld and protected the proprietary rights of women, especially in the matters relating to
inheritance, in an era when women were denied even the most basic human rights in our country.

The Concept of Private Property and its Sanctity under Hindu Jurisprudence:

No civilised society can exist without the recognition of the right to private property and also
putting in place a system for the protection as well as the enforcement of the proprietary rights of
its constituents, and Hindu Law and jurisprudence is no exception to this rule and in fact is not
found wanting in this respect, as compared to other civilisations. On the contrary ancient Hindu
Jurisprudence compares surprisingly well with even modern jurisprudence as we will see in the
present part of this paper hereinafter.

The Naarada Smrti divides property as follows:

“lokesmin dvividham dravyam, jangamam shtaavaram tathaaKrayavikrayadharmeshu

sarvam tatpanyamuchhyate”

Page 40 of 208
 “The wealth in this world is of two kinds—Jangam (moveable) and Sthaavara
(immoveable). In the law relating to purchase and sale, both are considered as panya
(saleable property).

The chapter on inheritance in the Mitaaksharaa opens with a lengthy theoretical discussion, after
defining the term Daaya and Bhaaga (or Vibhaaga) Vijnyaneshwar enters into a discourse on the
concept of ownership. The Brhaspati Smrti defines what constitutes ownership as:

“Bhuktyaa kevalayaa nava bhuktissidhhimavapnuyaatAagamenaapi shudhhena

dvaabhyaam siddhyati naanyathaa.”

(i) Possession coupled with a legitimate title constitutes proprietary right (ownership).
(ii) It is not by mere force of possession that land becomes a man’s property. Proof of legitimate
title is also essential. Both possession and title make it his property.

The sources of ownership are enumerated in the Gautama Dharmasutra:

“A person becomes the owner by inheritance, purchase, partition, garnering, or discovery. In
addition a Brahmin becomes owner of what he receives, a Kshatriya of what he conquers and
Vaishya and Shudra of what they earn.” (G. 10.39-42)29 Before we proceed further, there is one
issue which needs to be borne in mind clearly and that is, during the early Vedic period, it
appears that the nature of the Vedic society was that of a pastoral economy. Consequently, in a
pastoral economy, the primary unit of wealth was not land but it was cattle. This reflected in the
contemporary spiritual discourse also where God was conceived as “Pashupati” or the lord of
cattle. However during the later Vedic period and in the subsequent sutra and later Smrti period
the transition from a pastoral to that of an agrarian economy was almost complete. Consequently
even in the spiritual discourse too the concept of Kshetra-Kshetrajnya Vichaar was being
propounded, Kshetra meaning the field or farm and, in spiritual terms, the body, and Kshetrajnya
meaning the owner or possessor of the Kshetra or in spiritual terms the soul. By the time the
Arhtashaastra was written, the transition was not only complete but had become long established.
The society that we come across in the Arthashaastra is a well organised and advanced agrarian
economy which also included developed trade in various commodities. In fact Kautilya defined
the term “Arthashaastra” to mean:

Page 41 of 208
“Manushyaanaam Vrttirarthah, Manushyavati Bhoomirityarthah: Tasyaahaa
prthivyaalabh paalanopaayama shaastram arthashaastramiti”.

The livelihood of people is Artha, the primary source of livelihood of man is land and the
conquest or acquisition of land and the science that deals with the maintenance or
administration of land is Arthashaastra. The definition of Arthashaastra is not that of
economics, in which restricted sense we use the term at present, but is a wider definition
of Political Economy. Be that as it may, Kautilya approaches the issue of property,
proprietary rights, their acquisition, loss etc. in a very detailed and practical manner.
Kautilya grapples with and deals with such issues as acquisition of title by adverse
possession, if the possession of the holder who holds the possession adversely to that of
the original owner is for an uninterrupted period of 10 years. Similarly, he speaks about
presumption of ownership, when the original documents of title are lost and the person in
question has been in uninterrupted possession of the property in question, or in other
words, possessory title.

However, as stated earlier, every classical civilisation and especially agrarian economies
have all had a well-developed concept of property and proprietary rights to properties
both, moveable and immoveable. However, in almost all agrarian civilisations Land, the
most primary source of proprietary rights was owned by the king. The King distributed
land, as largess, to his nobles as he pleased and they derived their titles to their holdings
from the sovereign and held them at his pleasure. The King was the supreme sovereign
and in the King vested the executive, legislative as well as the judicial powers. In such a
system, the rights of an individual and especially proprietary rights and their enjoyment
are dependent on the pleasure and whims of the sovereign. This is so because the modern
principle of Rule of Law as we know it in our times was unknown in the ancient feudal
economies and civilizations. The modern concept of Rule of Law presupposes as its
basis, the principle of separation of powers meaning that powers of the legislative,
executive and judicial wings of the state are clearly demarcated and separated and they do
not vest in one and the same person, such as the King or monarch. Such separation of
powers is possible when the powers of all the three branches of the state namely, the
executive, legislature and the judiciary are circumscribed and restricted by an overarching
legal framework such as is the case under a written constitution or, in the absence of a

Page 42 of 208
 written constitution, by well-established constitutional precedents, as in the case of the
UK. It is obvious that such a constitutional hierarchy which we see today in the form of
liberal democracies has arisen as a direct consequence of the Industrial Revolution and
the rise of the industrial society. In the predominantly agrarian civilisations of the past
such a hierarchy could not have arisen. But in so far as India was concerned, we find that
surprisingly, the concept of the Rule of Law was understood and practiced by and large
throughout the country due to certain peculiar circumstances which it will be very
interesting to see.
As we have seen while considering the smrti literature, that it was not in the King that the
legislative power vested in India but it was conceded to the rishis and smrtikaars who were held
in great esteem by the whole of society and greatly revered. However even much prior to the
smrtis or even the sutras we find a clear enunciation of the concept of the Rule of Law, in the
Brhadaaranyaka Upanishad, which clearly states to the effect that:
“Kshatrasya Kshatram yaddharma, tasmad dharmadparam naasti, atho
abaliyaan baliyaansamaashansate dharmena, yathaa raajnyaa evam.”

“Law is the King of kings there is nothing superior to law, law aided by the power of the
King enables the weak to prevail over the strong.”

Thus here we have a clear conception of Law being the King of Kings, or in other words the
King being subservient to and being bound by the law. His position is further made clear by the
Kaatyaayan Smrti, which clearly states:

“tasmaatcchastraanusaarena raja kaaryaani saadhayet,Waakyabhaave to sarveshaam

deshadrshtena sannayet,Aswargyaa lokanaashaaya praanikabhayaavahaah,
Aayurbeeja hari raajnyaa sati vakye swayamkrtih.”

A King should decide causes according to rules of shaastras.In the absence of a provision
in the texts he should follow the usages.King should never act according to his own fiat.
Such an action on the part of the King causes danger to him and brings ruin to the people.

Page 43 of 208
This is the clearest formulation of separation of powers as we can get in the ancient texts. But the
question which immediately springs to one’s mind is that, what the ancient texts state may have
been the ideal state of affairs but did this actually play out in practice too? If indeed the rule of
law prevailed in ancient India, then to what extent could or did an individual hold out against the
authority of the sovereign in order to guard his proprietary rights vis a vis the state/sovereign. In
this respect Justice Rama Jois cites a very interesting example of a common cobbler versus the
King during the reign of King Chandrapida of Kashmir. This episode is clearly mentioned by
Kallhana in his Raajatarangini which is a history of the Rulers of Kashmir. The officers of the
King Chandrapida undertook the construction of a temple of Lord Tribhuvanswaami on a certain
specific site, on which was located a hut belonging to a charmakaara (cobbler). The cobbler
refused to remove his hut when asked by the King’s officials to do so. The officers complained
about this to the King. The King however rebuffed his officers by saying:

“niyamyataam vinirmaanam yadvaa anyatra vidhiyataamParabhumyapahaarena

sukrtam ka kalankayet,Ye drashtaarah sadasatam te dharma vigunah kriyaaha
Vayameva vidhadmaschet yatu nyaayena koadhvanaa.”

Stop the construction or build (the temple) somewhere else. Who would tarnish such a
pious act by illegally depriving a man of his land?
If we who are the judges of what is right and what is not right, act unlawfully, who then
would abide by law?

The next day the cobbler got an audience with the king, when he represented before the King:
“Just as the palace is to Your Majesty, the hut is to me. I could not bear to see its demolition.
You can very well imagine the plight of a man who is deprived of his dwelling. However if Your
Majesty were to come to my hut and ask for it. I shall give it up having due regard to the code of
good manners.”

The King with all humility went to the cobbler’s hut and with the consent of the cobbler
purchased the hut by paying a price to his satisfaction. The cobbler then told the King with
folded hands thus:

Page 44 of 208
 “Raajadharaanurodhena paravattaa tavochitaaSwasti tubhyam chiram stheyaa dharmyaa
vrttaantapadhhatiDarshyanneedrusheeh shradhhaahaa shradhheyaa dharmachaarinaam.”

“Yielding to another (however low), adhering to the principles of Raajadharma, is an

appropriate course to a King. I wish you well. May you live long establishing the
supremacy of law (Dharma). Seeing in you such faith in Dharma others would also act
accordingly.”

The above example, illuminating as it is, does not necessarily mean that it was by and large
representative in character in any given period of time. However the very example shows clearly
that the powers of the State/King were properly circumscribed and the King was expected to
work within the limits placed on his powers. The supremacy of law over the King was definitely
a feature of the Indian Society at the time. Law as it was understood and in fact defined in the
west, was the command of the sovereign which clearly meant that in the west both the legislative
and executive powers vested in the King and therefore the principle in practice was that a King
can do no wrong. In India however law was not the command of the sovereign because the King
did not have legislative authority and was bound by the laws as laid down by the
Dharmashaastras. In other words a King in India, if he violated the injunctions of the Shaastras
would be doing something wrong, and consequently would not only be subject to correction by
the shaastras but would in fact risk loosing his legitimacy as a sovereign. This aspect of India’s
past needs to be properly appreciated and understood and if so appreciated, it will explain as to
why liberal constitutional democracy took roots in India whereas it failed to do so in other
countries newly liberated from their colonial yoke. Such countries lacked the tradition of the
supremacy of law which was well established in India for many centuries as we have seen above.

Lastly, while winding up our discussion, it is necessary to deal with a possible objection as to the
very relevance of the present exercise of delving deep into the past and trace the development of
Hindu Law and Jurisprudence over the centuries, when the same has undergone extensive
changes and modifications and codification to bring it in tune with modern times and with
modern law, which is predominantly Roman law. It needs to be understood that no society can
make a complete break with its past and no matter how much it changes, its past lives on in its
present, and for this reason it is always necessary to periodically revisit the past and assess and

Page 45 of 208
evaluate its present in the light of its past. Let us not forget that the Center for South Asian
Studies of the University of Texas at Austin deemed it necessary and relevant to undertake the
task of freshly translating the Daayabhaaga of Jimutvaahana and in the light of the same retrace
that development of that school of Hindu law, as recently as in the year 2002. Therefore it is all
the more important for us in India to revisit this past of ours and continuously re-evaluate it from
time to time as we reshape our present and build on it the edifice of our future.

Analytical Positivism

Many times jurists have made their efforts to define law, its sources and nature. For the purpose
of understanding their points of view, the jurists are divided on the basis of their approaches to
law. This division has been helpful in understanding the evolution of legal philosophy.One class
of these jurists came to be known as "positivists" or "analysts" who had little to do with vague
and abstract notions of natural law. These were the believers of Analytical or Positive School,
who propounded positivism. The term 'positivism' was invented by Auguste Comte, a French
thinker. The exponents of this school are neither concerned with the past nor with the future of
law but with the law as it exists, i.e. with law 'as it is' (Positrum). Its founder was John Austin
and hence it is also called Austinian School.The purpose of analytical jurisprudence is to analyse
the first principles of law without reference either to their historical origin or development or
their validity. Another purpose is to gain an accurate and intimate understanding of the
fundamental working concepts of all legal reasoning.

The positive law takes law as the command of the sovereign. It puts emphasis on legislation as
the source of law. It regards law as a closed system of pure facts from which all norms and
values are excluded.

Bentham

Jeremy Bentham was a lifelong former of law. According to him, no reform of substantive law
could be brought about without a reform of its original form and structure.

Bentham advocated an imperative theory of law, in which key concepts were sovereignty and
command, similar to Austin’s postulation. However he drew a distinction between social
desirability and logical necessity, which Austin did not. The model of Austin was the criminal

Page 46 of 208
statute. But Bentham undertook “rational reconstruction” which is wider that the model of
Austin.

In his book An Introduction to the Principles of Morals and Legislation, he has moved to ask
questions about the penal and civil code. While investigating its answers, he was led to Laws in
General. What was originally conceived as an appendix developed into a major consideration
which was finished in 1782 and published in 1945 as The Limits of Jurisprudence Defined.

Every law according to Bentham has a directive and a sanctioned part. Here, directive aspect
refers to the aspects of sovereignty will towards an act situation and the sanctioned aspect refers
to the force of a law. The law in force is dependent upon motivation for obedience: political,
physical, moral, religious and threats of punishments and rewards.

Sanctions are provided by subsidiary law but they themselves require a further set of subsidiary
addressed to judges to prevent any further evil.

Austin

Law as defined by Austin is the aggregate of the rules set by men as political superior or
sovereign to men as politically subject.

Criticism:

1. Law is not a command.

2. Law is not a duty, it is rather enabling than restrictive.
3. This definition does not cover customs and international law.
4. Also his definition ignores the social aspect of law and psychological factors which
secure its obedience.
5. It has no universal application.

Merits:

1. This definition lays down precise boundaries within which jurisprudence is to work.
2. This definition completely applies to English law.

Pound

Page 47 of 208
The definition of law according to Pound gave a valuable approach and opened new fields of
study in context of social problems. According to him, law is a social institution to satisfy social
wants.The only criticism received to his definition was that it gave no heed to nature and
character of law.
The merit of this definition was that it talks about policy and progress as well as theory of
justice.

Salmond

Law as per Salmond is that it is body of principles recognized and applied by State in
theadministration of justice.

Criticism:

1. He confuses justice with law: Law is actually in force whether it is evil or good,
whereas justice is the ideal founded in moral nature of man.
2. Law is defined in terms of purpose: Law serves many ends and by confining it only to
pursuit of justice, Salmond has narrowed the field of law.
3. Courts not legislation: conventions are not included in this definition because they are
not enforced by Courts. Meaning of courts is not defined. Certain areas of law, like
customs, international law etc. can also not be incorporated since even these are not
enforceable by law.

Merits:

This definition bought about a change in analytical positivist view.

4. It expanded the boundaries of jurisprudence that was narrowed by Austin.

5. It gave importance to courts.
6. By including its purpose and emphasizing the role of Court in its enforcement, he
gave law a practical shape.

Analytical jurisprudence is a legal theory that draws on the resources of modern analytical
philosophy to try to understand the nature of law. Since the boundaries of analytical philosophy
are somewhat vague, it is difficult to say how far it extends. H.L.A. Hart was probably the most

Page 48 of 208
influential writer in the modern school of analytical jurisprudence, though its history goes back
at least to Jeremy Bentham.

Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning
is or can be modeled as a mechanical, algorithmic process). Indeed, it was the analytical jurists
who first pointed out that legal formalism is fundamentally mistaken as a theory of law.

Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language
when referring to the aspects of legal systems. This was a philosophical development that
rejected natural law's fusing of what law is and what it ought to be. David Hume famously
argued in A Treatise of Human Nature that people invariably slip between describing that the
world is a certain way to saying therefore we ought to conclude on a particular course of action.
But as a matter of pure logic, one cannot conclude that we ought to do something merely because
something is the case. So analysing and clarifying the way the world is must be treated as a
strictly separate question to normative and evaluative ought questions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is the
law?"; "What is the relationship between law and power/sociology?"; and, "What is the
relationship between law and morality?" Legal positivism is the dominant theory, although there
are a growing number of critics, who offer their own interpretations.

Legal positivism is a school of thought of analytical jurisprudence, largely developed by

eighteenth- and nineteenth-century legal thinkers such as Jeremy Bentham and John Austin.
While Bentham and Austin developed legal positivist theory, empiricism and logical
positivism set the theoretical foundations for such developments to occur. The most prominent
legal positivist writing in English has been H.L.A. Hart, who in 1958 found common usages of
"positivism" as applied to law to include the contentions that:

1. laws are commands of human beings

2. there is no necessary connection between law and morals—that is, between law as it is
and as it ought to be
3. analysis (or study of the meaning) of legal concepts is worthwhile and is to be
distinguished from history or sociology of law, as well as from criticism or appraisal of
law, for example with regard to its moral value or to its social aims or functions

Page 49 of 208
 4. a legal system is a closed, logical system in which correct decisions can be deduced from
predetermined legal rules without reference to social considerations
5. moral judgments, unlike statements of fact, cannot be established or defended by rational
argument, evidence, or proof ("noncognitivism" in ethics).

Historically, legal positivism sits in opposition to natural law theories of jurisprudence, with
particular disagreement surrounding the natural lawyer's claim that there is a necessary
connection between law and morality.

With the empiricist and logical positivist theoretical influences borne in mind, the essence of
legal positivism as a descriptive investigation of particular legal orders is revealed, which, as
Peter Curzon wrote, 'utilises in its investigations the inductive method (i.e., proceeding from
observation of particular facts to generalisations concerning all such facts).'During these
investigations, matters of ethics, social policies and morality are eschewed; as Julius
Stone wrote, it is concerned primarily with 'an analysis of legal terms, and an enquiry into the
logical interrelations of legal propositions'. Further, law and its authority is seen as source-based;
i.e., the validity of a legal norm depends not on the moral value attached thereto, but from the
sources determined by a social community's rules and conventions.The source-based conception
of law is reminiscent of the logical positivist, Carnap, who starkly rejected metaphysics on the
basis that it attempts to interpret the nature of reality beyond the physical and experiential.

Thomas Hobbes and Leviathan

Thomas Hobbes, in his seminal work Leviathan, postulated the first clear notion of law based on
the notion of sovereign power. As Hampton writes, "law is understood [by Hobbes] to depend on
the sovereign's will. No matter what a law's content, no matter how unjust it seems, if it has been
commanded by the sovereign, then and only then is it law.'There is, however, debate surrounding
Hobbes's status as a legal positivist.

Jeremy Bentham
The English jurist and philosopher, Jeremy Bentham, is arguably the greatest historical figure in
the British legal positivist movement. In An Introduction to the Principles of Morals and
Legislation, Bentham laid the groundwork in for a theory of law that as the expressed will of a
sovereign. Bentham made a sharp distinction between people he called:

(i) Expositors – those who explained what the law in practice was; and

Page 50 of 208
 (ii) Censors – those who criticized the law in practice and compared it to their notions of
what it ought to be.

The philosophy of law, considered strictly, was to explain the real laws of the expositors, rather
than the criticisms of the censors.

Bentham was also noted for calling natural law "nonsense upon stilts."

John Austin followed in the theoretical footsteps of Bentham by writing The Province of
jurisprudence Determined.It must be noted, however, that Austin departed from Bentham on a
number of points, for example, by supporting the common law.

Differences aside, Austin embraced Hobbes's and Bentham's conception of law as a sovereign
command, whose authority is recognised by most members of a society; the authority of which is
enforced by the use of sanctions, but which is not bound by any human superior. The criterion
for validity of a legal rule in such a society is that it has the warrant of the sovereign and will be
enforced by the sovereign power and its agents.

The three main tenets of Austin's Command Theory are:

1. laws are commands issued by the uncommanded commander, i.e. the sovereign;
2. such commands are enforced by sanctions; and
3. a sovereign is one who is obeyed by the majority.

Austin considered the law as commands from a sovereign that are enforced by threat of sanction.
In determining 'a sovereign', Austin recognised it is one whom society obeys habitually. This
sovereign can be a single person or a collective sovereign such as Parliament, with a number of
individuals, with each having various authoritative powers. Austin's theory is also somewhat
brief in his explanations of Constitutions, International Law, non-sanctioned rules, or law
that gives rights. Insofar as non-sanctioned rules and laws that allow persons to do things, such
as contract law, Austin said that failure to obey the rules does result in sanctions; however, such
sanctions are in the form of "the sanction of nullity."

Hans Kelsen and Germanic positivism

The British legal positivism hitherto mentioned was founded on empiricism; by contrast,
Germanic legal positivism was founded on the transcendental idealism of the German
philosopher, Immanuel Kant. Whereas British legal positivists regard law as distinct from

Page 51 of 208
morals, their Germanic counterparts regard law as both separate from both fact and morals. The
most famous proponent of Germanic legal positivism is Hans Kelsen, whose central thesis on
legal positivism is unpacked by Suri Ratnapala, who writes:

'The key elements of Kelsen's theory are these. Facts consist of things and events in the physical
world. Facts are about what there is. When we wish to know what caused a fact we look for
another fact. A stone thrown in the air comes down because of the force of Earth's gravity. There
are seasons because the Earth's axis is tilted at 23.5 degrees. A norm, unlike a fact, is not about
what there is but is about what ought to be done or not done. Whereas facts exist in the physical
world, norms exist in the world of ideas. Facts are caused by other facts. Norms are imputed by
other norms. The requirement that a person who commits theft ought to be punished is a norm. It
does not cease being a norm because the thief is not punished. (He may not get caught.) The
norm that the thief ought to be punished exists because another norm says so. Not all norms are
laws. There are also moral norms. Legal norms are coercive; moral norms are not.'

From this framework, Kelsen opined that the regression of validated norms cannot go on
infinitely and must arrive at a First Cause, which he called a Grundnorm. The legal system is
therefore a system of legal norms connected to each other by their common origin, like the
branches and leaves of a tree.

For Kelsen, "sovereignty" was a loaded concept: "We can derive from the concept of sovereignty
nothing else other than what we have purposely put into its definition."

Kelsen attracted disciples among scholars of public law worldwide. These disciples developed
"schools" of thought to extend his theories, such as the Vienna School in Austria and the Brno
School in Czechoslovakia. In English-speaking countries, H. L. A. Hart and Joseph Raz are
perhaps the most well-known authors who were influenced by Kelsen, though both schools
differed from Kelsen's theories in several respects.

H.L.A. Hart
H. L. A. Hart later addressed Austin. Hart liked Austin's theory of a sovereign, but claimed that
Austin's Command Theory failed in several important respects. In the book The Concept of Law,
Hart outlined several key points: Among the many ideas developed in this book are:

Page 52 of 208
 i. A critique of John Austin's theory that law is the command of the sovereign enforced by
the threat of punishment.
ii. A distinction between the internal and external considerations of law and rules, close to
(and influenced by) Max Weber's distinction between the sociological and the legal
perspectives of law.
iii. A distinction between primary and secondary legal rules, such that a primary rule governs
conduct, such as criminal law and a secondary rules govern the procedural methods by
which primary rules are enforced, prosecuted and so on. Hart specifically enumerates
three secondary rules; they are:

1. The Rule of Recognition, the rule by which any member of society may check to
discover what the primary rules of the society are. In a simple society, Hart states,
the recognition rule might only be what is written in a sacred book or what is said
by a ruler. Hart claimed the concept of rule of recognition as an evolution
from Hans Kelsen's "Grundnorm", or "basic norm."
2. The Rule of Change, the rule by which existing primary rules might be created,
altered or deleted.
3. The Rule of Adjudication, the rule by which the society might determine when a
rule has been violated and prescribe a remedy.
4. A late reply (1994 Edition) to Ronald Dworkin, who criticized legal positivism in general
and especially Hart's account of law in Taking Rights Seriously (1977), A Matter of
Principle (1985) and Law's Empire (1986).

Joseph Raz

A pupil of H. L. A. Hart, Joseph Raz has been important in continuing Hart's arguments of legal
positivism since Hart's death. This has included editing a second edition of Hart's The Concept of
Law, with an additional section including Hart's responses to other philosophers' criticisms of his
work.

Raz has also argued, contrary to Hart,that the validity of a law can never depend on its
morality. However, Raz has come to accept that law may depend upon morality in certain
circumstances.

Page 53 of 208
 Unit- II
Schools of Jurisprudence
“The first requirement of a sound body of law is that it should correspond with
the actual feelings and demands of the community, whether right or wrong.”

Historical School of Jurisprudence

Jurisprudence is a subject in which the definition nature and the sources of law are studied
various writers under various schools have defined law. Austin under Analytical school says that
law is the command of sovereign. He added only the law in the study of jurisprudence. But
under historical school Sovigny says that law is the general consciousness (Volkgeist) of the
people. It means what the common people think or behave is the base of law. Law shows the
general nature of the common people. This theory of Volkgeist is based on the historical
method. Sovigny is the father of it. According to Sovigny, “Law is the General consciousness of
the people.”

Historical School is a branch of Law, which studies law from the past history. It says that law is
based on the General Consciousness of people. The consciousness started from the very
beginning of the society. There was no person like sovereign for the creation of law.The law in
the ancient times was based mainly upon simple rules, regulation, custom, usages conventions
etc. These things were later on developed by the jurists and lawyers. These things were later on
converted into set form of law.

The Historical school is just opposite to the Analytical school in 18th and 19th century, the
concept of individualism came into existence. Due to this concept the revolutions came like
French revolution, Russian revolution etc. At that time Sovigny,Montesquieu, Barke, Hngo were
the writers who said that law is the general will of the people or law is based upon common
people and the feelings of the common people. Law develops like the language and manners of
the society. So law has a natural character. Law has no universal application. It differs from
society to society and state to state. In the same way the languages differ from society to society
and locality to locality.

Page 54 of 208
Montesquieu has said, “Law is the creation of climate, local situations and
accidents.”According to Hugo Hag, “Law develops like language and the manners of the society
and it develops according to suitable circumstances of the Society. The necessary thing is the
acceptance and observance by society.”

According to Burke, “Law is the product of the General process. In this sense it is dynamic
organ which changes and develops according to the suitable circumstances of society.”

Savigny is considered as the main expounder or supporter of the historical school. He has given
the Volkgeist Theory. According to this theory, law is based upon the general will or free will of
common people. He says that law grows with the growth of nations increases with it and dies
with the dissolution of the nations. In this way law is national character. Consciousness of
people. In other words, according to this theory law is based will or free will of common people.
He says that law grows with the growth of nation. A law which is suitable to one society may
not be suitable to other society. In this way law has no universal application because it based
upon the local conditions local situations, local circumstances, local customs, elements etc. Al
these things effect law and make it suitable to the society.

The main features of the Soveging theory is :-

1. Law has a national character.

2. Law is based upon the national conditions, situations, circumstances, custom ,etc.
3. Law is pre historic: means law is found and is not made, the jurists and the lawyers make
it into set form.
4. Law develops like language and manner of the society. In ancient society law was not in
a natural stage or no in a set form. Later on with the development of the society the
requirements and the necessities of the society increased. Due to this it was necessary to
mold law in a set form.

Importance of Customs

According to Savigny, customs are more important than legislation because customs come
before legislation. In other words the customs are the base of legislation.

Criticism of Savigny’s Theory

Page 55 of 208
Savigny’s theory has been criticized on the following grounds:

1. Inconsistency in the Theory: Savigny asserted that the origin of law is in the popular
consciousness, and on the other hand, argued that some of the principles of Roman law
were of universal application. Thus, it is a clear cut inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law :- There are many technical rules which
never existed in nor has any connection with popular consciousness.
3. Customs not Always Based on Popular Consciousness:- Many customs are adopted due
to imitation and not on the ground of their righteousness. Sometimes customs completely
opposed to each other exist in different parts of the same country which cannot be said to
be reflecting the spirit of the whole community.
4. Savigny Ignored Other Factors That Influence Law:- The law relating to trade unions is
an outcome of a long and violent struggle between conflicting interests within a society.
5. Many Things Unexplained :- Legal developments in various countries show some
uniformity to which he paid no heed. i.e. What is national and what is universal.
6. Juristic Pessimism:- Soveging encouraged juristic pessimism. Legislation must accord
with popular consciousness. Such a view will not find favour in modern times. No legal
system would like to make compromise with abuses. People are accustomed to it.

From the facts mentioned above we have gone behind to see the history of the society to check
that what was the position of law in the ancient time. How and in what form law was prevailing
in the society? To find the solution of the questions the supporter of Historical school found that
law is the general consciousness of the common people or it is the free will of common people
on which law developed and converted into a set of form of law.

Sociological School of Jurisprudence

The Sociological approach to the study of law is the most important characteristic of our age.
Jurists belonging to this school of thought are concerned more with the working of law rather
than its abstract content. Their principal premises is that the law must be studied in action and
not in textbooks. They have been at work upon jurisprudence with reference to the adjustment of
relations and ordering of human conduct which is involved in group life. They are concerned

Page 56 of 208
with the study of law in relation to society. They concentrate on actual social circumstances
which gives rise to legal institutions. Sociological jurists……insist on the unity of the social
sciences and the impossibility of the wholly detached self – centered, self – sufficing science of
law. They insist that the legal order is a phase of social control and that it, cannot be understood
unless taken in its whole setting among social phenomena.

Sociological school of jurisprudence has emerged as a result of synthesis of various juristic

thought. The exponent of this school considered law as a social phenomenon. They are chiefly
concerned with the relationship of law to other contemporary social institutions. They emphasize
that the jurist should focus their attention on social purposes and interest served by law rather
than on individuals and their rights. According to the school the essential characteristic of law
should be to represent common interaction of men in social groups, whether past or present
ancient or modern.

The main concern of sociological jurists is to study the effect of law and society on each other.
They treat law as an instrument of social progress. The relation between positive law and ideals
of justice also affects the sociology of law.

It would therefore be seen that sociological jurisprudence is a multifaceted approach to resolve

immediate problems of society with tools which may be legal or extra – legal and techniques
which promote harmony and balance of interests of society.

Sociological Approach – Nature and Meaning

Sociological approach towards study of law was a reaction and revolt against the analytical and
historical school both of which regarded law as self – contained system – the former deriving
validity of law from the sovereign – the law giver and the latter from the slow and silently
flowing historical and cultural processes and forces. The sociological approach considers law as
a social fact or reality to shape, mould and change society to sub-serve its needs, expectations
and goals through law. The interrelationship between law and society and the study of
community and of social phenomena, of group or individual interests and their realization ans
fulfillment through law is the paramount concern of law. Of – course! The Sociological approach
to the study of law is of recent origin. The other Schools have been more concerned with the
nature of law and its source rather than its actual working, functioning and social ends which law

Page 57 of 208
strives to subserve. All the jurists who define law in relation to society in terms of ends which
law serves and the interests which the law satisfies and the common good which the law seeks to
achieve – thereby make law as an instrument of social control and social change are grouped
together as jurists belonging to Sociological School of Jurisprudence.

Characteristics of Sociological Jurisprudence

The chief characteristics of Sociological Jurisprudence are as follows:

1. Sociological jurists are concerned more with the working of law rather than with the
nature of law. They regarded law as a body of authoritative guides to decision and of the
judicial and administrative processes rather than abstract content of authoritative
precepts.
2. It considers law as a social institution which can be consciously made and also changed,
modified or retained on the basis of experience. In other words, it it synthesizes both the
analytical and historical approach to the study of law.
3. Sociological Jurists lay emphasis upon social purposes and social goals and expectations
which are the law subserves rather upon sanctions and coercive character of law.
4. Sociological jurists look on legal institutions, doctrines and precepts functionally and
consider the form of legal precepts as a matter of means only to satisfy greatest good of
the greatest number.

Sociological approach to the study of law towards the end of the 19th century did not emerge in
isolation. It was a reaction against the formal and barren approach of the analytical jurists and the
pessimistic approach of the historical jurists. There was a dire need to study law not in mere
abstraction, but in its functional and practical aspects. Further, on account of economic and
social conflicts towards the beginning of 20th century led to growing disbelief in the eternal
principles of natural law which had hitherto placed an idea of harmony before the individual.
These various approaches appeared as a clog in the way of legal reform, social change and
economic justice. The theory of inalienable natural rights was now being considered as an
expression of outmoded laissez – faire philosophy. This led the States to expand the dimension
of their activities to such matters as health, insurance, education, old age security and other form
of social and economic aspects of welfare. Hence a new approach towards the study of law in
relation to its ends, purposes and functions for ordering and regulating to its ends, purposes and

Page 58 of 208
functions for ordering and regulating to its ends, purposes and functions for ordering and
regulating to its ends, purposes and functions for ordering and regulating to its ends, purposes
and functions for ordering and regulating relationship between individuals and groups of
individuals emerge which is described as the sociological jurisprudence.

Among the foremost writers who made an attempt to apply scientific methods to social
phenomenon was Auguste Comte (1798 – 1851). He is known as the founder of sociology as a
science. He laid stress upon empirical methods such as observation and experiment for the study
of society. It is the task of sociology to provide methods, tools and a basis for purposeful and
realistic appraisel of social phenomena which interact in society.

Bentham’s theory of utility, i.e., the greatest good of the greatest number has been utilized by the
sociological jurist for legal reform, social progress and general welfare. It would be useful to
dilate upon the contributions made by important jurists towards the growth and development of
the Sociological School of Jurisprudence.

The sociological school’s idea of law is a continuation of this persistent process of enquiry into
the origin of law as begun by the Historical School. This view of the sociological school is in
tandem with the knowledge of law with regard to society: what it is doing; what it has done; and
what it is expected to be doing. The sociological school carry forward the mission of the
historical school and reject the formal and logical idea of law according to the positivists on the
ground that the formal law presents only a portrait of the law. In effect, the preoccupation with
the study of the science gave law a prominent place in the new studies and the 19th century
unearthed a number of leading sociologists in Europe (and America) especially Germany who
began to look to the newly found studies of society as a key to a better understanding of law than
had been gained from the Natural Law School and the Positivists.

The contribution of the various scholars and jurists of sociological persuasion highlighted several
points which need mention:

a) That law is not unique but only one of the social control norms;
b) That the socio – economic problem of the present time cannot be solved by means of the
existing law;

Page 59 of 208
 c) That the laws in the books and statutes containing formal rules, legislations and
expositions of particular subjects is not where the real law in society is to be found;
d) That the law is not an absolute and static body of rules in themselves but are relative to
time, place and society; that there is such a thing as ‘social justice’. However, view differ
greatly as to what constitutes social justice and the achievement thereof.
e) Comte had stated that the advancement of knowledge could be through only “observation
and experiment” and he furnished a classification of the social sciences that was
hierarchical. Comte considered it most fruitful to apply the scientific method to sociology
despite the inherent difficulty. He compartmentalized sociology into two i.e., social
statics and social dynamics all emanating from his description of sociology as the science
of social order and progress. He saw society as an object constantly in development
which if viewed in a scientific way could have its growth harnessed for one purpose:
progress. The object of the sociological school was to work out in a scientific way the
process of determining the variables by which society functioned with regards to law and
vice versa.

The importance of sociological school of law may be immediately noticed when the attitude of
law and state is compared. The previous attitude of the state was ro confine itself to law and
order enforcement and thereby striving to enforce stability in society by enforcing the norms
regulating the existing relationship between individuals and society as well as between
individuals. This in many ways ways (which we will evaluate) can be futile. Therein lies the
allure of the sociological school: in the failure of the laissez fair notion of law and state.

The objective of sociological source of jurisprudence is to resolve immediate problems of society

with such tools – legal or extra legal & techniques which promote harmony and balance of
Interest of society. Further the Jurist of sociological schooling rejected the analytical and
historical jurisprudence as Jurisprudence of concepts & considers law as an Instrument of
serving the head of Individuals in society. The chapter apprises, how the school cause into being
passing through various stages and how for it is different from others schools of jurisprudence.

The main field of study – effect of law and society on each other
Sociological school includes a number of approaches made since the end of the last century.

Page 60 of 208
These approaches are more diverse than uniform. The main and the common field of study of the
jurist who made such approaches is the effect of law and society on each other. This approach
takes law as an instrument of social progress. Therefore, it is concerned with values also. And
many jurists have pleaded that under sociology of law the relation between positive law and
ideals of jurists should also be studied. Many jurists of great authority have been their definitions
of sociology of law but, as pointed out above, it is not possible for a single definition to cover the
wide range of study under this approach. To know these approaches in their proper historical
context, a discussion of the views of representative jurists of various approaches is necessary.

Backdrops of Sociological Jurisprudence

It is well known that the relations between individual, society and State are never static, they
have always been changing with the exigencies of time and needs of the society. Therefore,
various theories regarding their relationship have also changing. For instance, the early society
societies were governed by customs which were only a social sanction. Then came the period of
the supremacy of the Church i.e., the priestly class. To counter the growing influence of the
Church, the secular State emerged powerful dominating all other institutions. The omnipotence
of the State gave rise to the period of renaissance and the legal philosophers began to think in
terms of freedom of individuals and their rights and liberties. This resulted into political
upheavals giving rise to despotic rule i.e., Nazism in Germany and Fascism in Italy. As a result
of this, there was need to review the legal theory for maintaining a balance between the State,
welfare of the society and the individual interests. Finally, it was realized that socialization of
law and legal institutions would perhaps best sub – serve the common good and interests of the
society. Consequently, a synthetic approach to jurisprudence by evolving a new legal philosophy
called the sociological school emerged out of the synthesis of historical and philosophical
movement and the comparative study of legal system.

Emergence of Sociological Jurisprudence

There are following factors responsible for emergence of Sociological School of Jurisprudence.
They can be summarized as follows:

i. Mental bankruptcy of analytical approach to meet the social demands of modern society.
ii. Conflicts between individual interests and social interests and the need to reconcile them.

Page 61 of 208
 iii. Inter – connection between law and society.
iv. Works of the earliest pioneers of the new interests in society, i.e., Bentham, Renner,
Weber and other etc.

Sociological Thinking and its Relevance to Law Making

The sociological school of thought may be said to have made some inroads into legislation
making in Nigeria but its impact is felt more in trial proceedings than anywhere else. It is unclear
if this importation of sociology into law making is by inadvertence or by design but its relevance
for use in our courts may not now be disputed by the discerning eye. This importation is by
means of Evidence Act. The Act provides that;

“facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts
or facts in issue, or which constitute the state of things under which they happened, or
which afforded an opportunity for their occurrence or transaction are relevant.”

The question will often be asked why trial proceeding in Nigeria for instance will allow evidence
derives from the sociological fields while such considerations are not taken into cognizance in
the codification of laws. For, in many countries, not least of all Nigeria, legislation has not
appeared to follow sociological precepts thereby leading to laws being ignored or out rightly
contravened. There are myriad reason adduced for this.

The most significant of which is the specific sociological setting in Nigeria that allows for
permissiveness. In many cases corruption has rendered laws ineffective largely due to the fire
brigade approach to legislation devoid of sociological investigation and also coupled with an
abundance of lack of enforcement. The Taxation laws and the Bankruptcy laws are called to
question. Prof. D.A. Ljalaiye cited othoi cases which include the ownership of land vested in the
governor of states.

Sociological Jurisprudence and Sociology of Law Distinguished

It would be pertinent to draw a distinction between sociological jurisprudence and sociology of

law which appear to be similar concepts. Though it is difficult to draw a hard and fast line of
demarcation between the two because of their identical subject matter they do differ in respect of
their theme and approach to law. Sociological Jurisprudence is a functional study of law applied

Page 62 of 208
to concrete social problems in order to make law an effective instrument of social control for
harmonizing the conflicting interest of individuals in the society. In this sense law has a wider
connotation and includes judicial decisions and administrative processes used for reconciling the
competing interests of the people. It is for this reason that sociological jurisprudence has also
been called as functional jurisprudence or jurisprudence of interests or jurisprudence of social
engineering.

Sociology of law, on the other hand, is a descriptive study of law and legal institutions of a given
society. As Roscoe Pound rightly remarked, sociology of law is mainly a descriptive study of
law in a theoretical manner. It treats law as just one of the several aspects of society and
therefore has a secondary position as compared to society which is the main theme of sociology.
Thus strictly speaking, sociology of law is justa branch of sociology. According to Hall,
sociology of law is a theoretical science which consists of generation regarding social
phenomenon, so far as they refer to contents, purposes, application and effects of legal rules.

According to Dr. Timasheff, “sociology of law exists as a distinct science whereas sociological
jurisprudence is merely a branch of science of jurisprudence. However, both consider society as
the matrix of their common interest.”

Sociological Jurisprudence of Roscoe Pound

“A desire for an ideal relation among men which we call justice leads to thinking in
terms of an achieved ideal relation rather than of means of achieving it.”

With the rise of the modern Science, there came to exist among jurists an apparent unanimity of
belief in the possibility of applying “the scientific method” to the study of law and legal
philosophy. Under the influence of the Comtian positivist sociology, there developed a
sociological jurisprudence having in view the understanding of the role of law in society and the
application of the social sciences to the study of law in action and the rendering of law more
effective as an instrument of social control for the ends which law is designed to accomplish in
the civilization of the time and place.

As the recognized leader of the sociological school in America for more than half a century,
Roscoe Pound has devoted his efforts to this work. Through his vast legal studies, excursions
into legal history, mastery and application of philosophy to law, and his research into case law

Page 63 of 208
for purposes of understanding how law is actually functioning, Dean Pound has made
tremendous strides toward the accomplishment of this objective. In addition to these efforts,
Pound has contributed a "theory of interests" which he believes to be the most effective
instrument yet devised for the scientific development and application of law. A brief
consideration of Pound's theory of interests in the context of sociological jurisprudence is the
subject of this article.

Background of Pound’s Philosophy

The forerunner of sociological jurisprudence was Montesquieu, who was the first to apply the-
fundamental principle which sociological jurists assume. In L'Esprit des Lois, he expounded the
thesis that a system of law is a living growth and development interrelated with the physical and
societal environment.

The great impetus to the movement in modern times was furnished by Rudolph von Ihering, who
revolted against the jurisprudence of conceptions of the historical-metaphysical school. Whereas
juristic activity was centered around speculation as to the nature of law, Ihering emphasized
consideration of the function and end of law. He stressed the social purpose of law and insisted
that law should be brought into harmony with changing social conditions. His thesis was that the
protection of individual rights is dictated by social considerations only. What are termed "natural
rights" are nothing more than legally protected social interests. The individual's welfare is not an
end in itself but is recognized only insofar as it aids in securing the welfare of society.

The basic ideas of Ihering, called social utilitarianism, stand as a link between Bentham's
individual utilitarianism and two important movements of the twentieth century; the
"jurisprudence of interests" in Germany and the sociological jurisprudence of Roscoe Pound.
While writing his great treatise, the Spirit of the Roman Law, Ihering reached the position that a
legal right is a legally protected interest. This led him to search for the purpose of law and to
conclude that purpose is the creator of all law, that every rule of law owes its origin to some
practical motive. Every act is an act done for a purpose. Thus, while he held the human will to be
free from mechanical causation, he concluded that it is subjected to the law of purpose, that is, it
acts "because of" reasons (interests). Interests become the basic ingredient of his system.

Page 64 of 208
Ihering treats law in the broad context of society. The purpose of law is to secure the conditions
of social life, and this determines the content of law. The conditions of social life include both
physical existence and ideal values, but these are relative to the social order of the time and
place. He developed an inchoate scheme of interests and designated them as individual, state,
and public, the last two of which he tended to treat as one. However, he did not develop a
successful means of "evaluation" of the interests as against each other. Ihering thoroughly
subordinates individual interests to social interests, holding that the duty to assert one's
individual interest is a duty owed to society, even when in a material sense it would not pay to do
so. Thus, individual rights regarded from the socialized point of view are but a means for society
to realize its social ends. Unlike Bentham, Jhering recognized altruistic interests as well as
egoistic interests, but he gave little consideration to the former. He recognized the beneficial
interests to society which comes from an individual's acting to vindicate his personal interests,
however. Ihering's scheme has been criticized for lack of a reasonably objective criterion for
selection and evaluation of interests. His ideas were to have a great influence on the thought of
Roscoe Pound.

Rudolph Stammler began his critical philosophy with an attack upon economic and historic
determinism. He sought a systematic coordination of the various phenomena under a
comprehensive principle, a formal method by which the changing content of empirical rules
might be worked out. Stammler focused his attention on the relation of ethics to law rather than
administration of justice by legal rules. Under his scheme, the jurist is confronted with a twofold
problem: the existence of a rule of right and law; and the mode of effectively executing such a
law. It is the duty of the state to study social phenomena and to use its findings for the attainment
of just law. This functional sociological approach is Stammler's greatest achievement. He set up
the social ideal as the goal of justice through law. Whereas Kant had looked to free-willing
individuals, Stammler looked to a community of free-willing men. He conceived of an ideal of
social cooperation, whereby the individual is merged in the community. Then, putting emphasis
on individual ends rather than individual wills, he arrived at a theory of justice. He sought to
supplant an individualist philosophy with a social philosophy of law and to add a theory of just
rule-making and just decision in concrete cases. With his airis the sociological jurist must be in
thorough accord.

Pound’s Objective of Sociological Jurisprudence

Page 65 of 208
The practical objectives of sociological jurisprudence have been formulated by Pound as follows:

i. A study of the social effects of legal institutions, legal precepts and legal doctrines, of the
law in action as distinct from the law in books.
ii. A sociological study as an essential preliminary step in lawmaking.
iii. A study to ascertain the means by which legal rules can be made more effective in the
existing conditions of life, including the limits of effective legal action.
iv. An attempt to understand the actual growth of the law by a study of the judicial methods
and modes of thought of the great judges and lawyers.
v. A sociological legal history of the common law, for studying the past relations of law to
then existing social institutions.
vi. Individualization of the application of legal rules so as to take account of the concrete
circumstances of particular cases.
vii. The establishment of a "Ministry of Justice" by the states to participate in this program.

Pound has compared the sociological jurisprudence with other schools of legal thought and notes
the following characteristics of adherents to the sociological school: they pursue a comparative
study of legal phenomena as social phenomena and criticize these with respect to their relation to
society. In particular they (1) consider the working of the law rather than its abstract content; (2)
regard law as a social institution which may be improved by human effort and endeavor to
discover and effect such improvement; (3) lay stress upon the social ends of law rather than
sanctions; (4) urge that legal precepts be used as guides to socially desirable results rather than
inflexible molds; and (5) their philosophical views are diverse, usually positivist or some branch
of the social-philosophical school.

The Theory of Interests

In the effort to accomplish the program of sociological jurisprudence, Pound believes that the
first problem confronting society is the establishment of his theory of interests as a functioning
part of the legal order. The development of this theory occurred in two steps: the formulation of
the jural postulates, in 1919, followed by the announcement of a classification or scheme of
interests two years later. Pound claims this to be his most valuable contribution to jurisprudence.
While recognizing certain valid criticisms, he has defended it vigorously as the most workable
means yet devised for sound "social engineering."

Page 66 of 208
The jural postulates consist of five generalized propositions about the law which are supposed to
serve as major premises under which all valid principles of positive law, both civil and criminal,
may be comprehended or subsumed. They are grounded in human nature and conduct as
expressed in Pound's interpretation of American judicial decisions on the appellate court level
and represent his conception of the jural ideals of our society. The relationship of the jural
postulates to the scheme of interests will be discussed hereinafter.

Other Sociological Jurists and Legal Theories

It is not possible to discuss all the sociological jurists and their theories. In modern times, social
relations are growing more complex. The concept of state and its relation with individuals have
undergone a drastic change. New interpretations are being given to these changes, some under
the influence of various political theories and others on the basis of a partial picture of law. Some
of the modern theories are no more than an analysis of the legal systems of the countries in
which they have been propounded. Some have classified these jurists as Nazi, Fascist, Soviet or
Communist, or American. The technical and complicated machinery of the administration of
municipal law and the increasing importance of International Law has also given birth to new
theories which we shall discuss separately under the headings’ Realist School’ and ‘Pure Theory
of Law’ and ‘Communist Theory’ in some detail.

Sociological School and Indian Position

To India, sociological school of jurisprudence has much relevance in terms of realisation of the
social and economic goals of the community. Law in free India is being adjusted to serve the
common needs and ends of society along with individual interests. However, before 1947 the
judges, the lawyers and law administrators did not look around while making new laws. The
pace of social change was very slow as the law was conceived either in analytical fashion
emanating from the British Parliament or the law had no relationship or relevance with the life of
people of India. The role of judges was not to discover the ‘inarticulate major premises’ or ‘felt
needs’ of the people but to interpret the law in its logical manner irrespective of the
considerations of social justice. The law was mostly imposed from above. It had no roots in the
Indian soil and its language too was foreign.

Page 67 of 208
After 1947 there was a change in the perspective of law itself. India became free and it adopted
the new Constitution with a view to establish justice – social, economic and political. To achieve
these set goals Indian planners introduced the system of economic planning in India with a view
to promote the welfare of the people by securing and protecting as effectively as it may a social
order in which justice, social, economic and political shall inform all institutions of national life.
Accordingly State evolved new social and economic policies to achieve the above ends. The old
analytical approach towards law was obviously abandoned in the interest of common goods as it
was unnecessary, unreal and inconvenient to the emergence of new social order. Hence a new
sociological approach for reconciling conflicting social interests and values became necessary
for bringing peaceful social change through law.

It is to stated that however divergent the view of various sociological jurists may appear, they
have common point that the law must be studied in relation to society. This view has a great
impact on modern legal thought. But it should not be taken to mean that other methods have
completely ceased to exist. Still there are advocates of natural law though with a ‘variable
content’, there are Catholic jurists who plead for maintaining a close relationship between law
and morals, but these approaches are in many respects, basically different from earlier
approaches of this type on the subject and are influenced by sociological approach.

The sociological school is one of he important branches of law. It comes after the Analytical
school and Historical school. Its seeds were found in the historical school. Duguit, Roscopound
and Camta are the supporters of this school. This school is related with society. According to this
school law is numerator of society. Law and society both are the two sides of the same coin, one
cannot exist without the other. If there is law there should be society and if there is society there
should be law. Law is very necessary for regulating the society. Many writers like Duguit,
Roscopound and Inhering gave these view in the sociological school.

The theory of Duguit under sociological school is a social solidarity. Scocial solidarity means the
greatness of society. Duguit said that there are mainly two types of needs of the society:

i. Common Needs, and

ii. Adverse Needs.

1. Common Needs :- Which are fulfilled by mutual assistance.

Page 68 of 208
2. Adverse Needs.:- Which are fulfilled by the exchange of services. No one can live without
the help of other. Even a state cannot exist without the help of other state. One cannot produce
all things required for him. So he has to depend upon others. The dependency is called social
solidarity. For this purpose the division of labour is necessary. Division of labour will fulfill all
requirement for the society. This philosophy or views is called social solidarity.

Essential Elements of Duguit Theory of Law

1. Mutual Inter dependence: In society all persons are depending upon each other.
Individual cannot fulfill his ambitions alone.
2. No difference between state & society: State and society are a group of persons. Main
purpose of the society is to save the people. This responsibility is also lies upon the state.
So state does not have a special status or above status from people. State should make
law for the welfare of the people.
3. Sovereign and will of people: Sovereign is a politically superior person. Duguit says that
sovereign is not superior to people. The sovereign of a state lives in people or in the will
of people.

Difference between Public & Private Law

Duguit says that there is no difference between public law and private law because the aim of
both the law is to develop the social solidarity. Pubic law and private law are meant for people.
Public right and private right or people have only duties and not any right.

There is no difference between public right and private right. According to Duguit there is only
one right that is to serve the people. It means person have only duties not rights.

Criticism of Duguit’s Theory

1. The theory of social solidarity is vague:- This theory is not clear for a common person.
One cannot gain anything from this theory so this is vague theory.
2. Who will decide social solidarity :- Duguit has not given the authority that who will
explain the solidarity because Duguit did not recognize sovereignty. We can imagine that
Judge will explain the standard of social solidarity. But there are no guidelines for the
Judges,

Page 69 of 208
 3. Public law and Private law are not same :- There must be an authority which passes the
law. In Duguit theory there is no place for such authority.
4. Public right and Private right are also not same :- The right of society is public right and
the right of common people is private right.
5. Custom ignored:- Custom is the base of any law but Duguit ignore these customs. In this
way the theory of Duguit is not suitably in modern times.

No doubt Duguit was a sociologist because he gave a lot of development to society. The social
solidarity itself contains the welfare of the people. Duguit said that law should be according to
the social solidarity. Here he discards natural principal but the theory of the social solidarity
itself is based upon natural law, which demands that the people should served properly according
to their needs. In this way Duguit put out the natural law principal from the door and accepted
through the window.

However the contribution of Duguit is accepted by many writers and some of them also adopted
this theory.

Economic School of Jurisprudence (Marxian Perspective)

In the social production of their existence, men inevitably enter into definite relations, which are
independent of their will, namely relations of production appropriate to a given stage in the
development of their material forces of production. The totality of these relations constitute the
economic structure of society, the real foundation, on which arises a legal and political
superstructure and to which correspond definite forms of social consciousness.

Marxist jurisprudence posits that legal relations are determined by the economic base of
particular kinds of society and modes of production. Marxist thought’s primary focus rests on
political economy and the corresponding power relations within society, providing the most
extensive critique to date of liberal tradition on which many of our legal presuppositions are
founded. To this end, this essay examines law, its structure, motivation and consequences for
justice and rights from a Marxian jurisprudential perspective.

Marxism and Law

Your ideas are but the outgrowth of the conditions of your bourgeois production and
bourgeois property, just as your jurisprudence is but the will of your class made into a

Page 70 of 208
 law for all, a will, whose essential character and direction are determined by the
economical conditions of existence in your class.

Law is not of central concern to Marxists jurisprudentialists, as law in the capitalist mode of
production is seen as an instrument of class oppression perpetuated as a consequence of its
particular historical, social and economic structures. Indeed, wishing to avoid liberal
predisposition towards legal fetishism, Marxists deny the degree of importance jurisprudence
typically affords law in analyses of the composition and determination of social formations.

What is Marxism?

Marxist theories of political economy, expounded upon the notions of Karl Marx (1818-83) and
Friedrich Engels (1820-95), consider law an instrument of class oppression that benefits the
ruling class through oppression of the proletariat. The common law system of criminal and civil
law, which protects personal and private property rights, as well as facilitating predicability in
social life, is regarded as “no more than a system of coercion designed to protect bourgeois
ownership of the means of production”.

Yet, despite Marx and Engels’ failure to develop a systematic approach to law, and claims of
failure in Eastern Europe and the Soviet Union, Marxism’s materialist emphasis, particularly
concerning the notion of alienation and its consequences as outlined by Ollman, assists its
contemporary paucity.

Historical Materialism

Men have history because they must produce their life, and because they must produce it
moreover in a certain way: this is determined by their physical organisation; their consciousness
is determined in just the same way.

The determinist relationship between the economic base and social superstructure, known as
Historical Materialism, is first described in The German Ideology. Historic materialism contends
that the catalyst behind societal evolution is materially determined, being predicated on
contradictions between the forces and means of production. As “it is not consciousness that

Page 71 of 208
determines life, but life that determines consciousness”, law is a reflection of the economic base,
rather than the reserve as liberals such as Dworkin would propose.

Under increasing industrialisation Marx foresaw crystallisation of society into two classes;
bourgeoisie and proletariat. These relations of production developed due to particular forces of
production under the capitalist mode of production that coerced the bourgeoisie to extract surplus
value as profit from the proletariat. Laws, as Marx detailed in Capital, as one element of the
social superstructure, assisted in forcing down wages.

Collins characterizes two Marxist approaches; crude materialism, in which law is simply a
reflection of the economic base; and secondly, class instrumentalism; in which rules emerge
because the ruling class want them to. This distinction continues as an area of debate, as
demonstrated by O'Malley’s attacks of Quinney and Chambliss’ crude materialist claim that law
is a direct tool of powerful classes or groups, favouring the more interactionist, and less conflict
premised theory of legislative change. The Relative Autonomy Thesis is such a theory.
Contemporary Marxists such as Marcuse, suggest mechanisms analogous to the Factory Acts and
Vagrancy Acts remain instruments of the ruling class perpetuating conditions reinforcing this
arrangement, especially in relation to the alienating nature of modern technological rationality.

Base and Superstructure in the Capitalist Mode of Production

Much of our law, such as Contract, Property and Commercial Law, is predicated on the existence
of the capitalist mode of production. As Marx’s major project was the critique of capitalism,
irrespective of a belief in revolution, Marxism has a great deal to notify us of in our
contemporary jurisprudence. Marxism postulates that in the social production of their existence,
people, independent of their will, enter into definite relations of production appropriate to a given
stage in the development of the materials forces of production. Consequently the societal
superstructure, including but not dominated by law, amongst other hegemonic devices, is
determined by the economic base and the organisation of power in society. Marxist jurisprudence
concentrates on the relationship between law and particular historical, social and economic
structures, seeing law, unlike liberal theory, as having no legitimate primacy. Frequently
encountered legal rules and doctrine, argue Gramsci and Althusser, establish modern liberal
jurisprudential hegemony.

Page 72 of 208
Scientific Socialism

Marxist epistemology, with dialectic materialism as the centerpiece of Marxism’s scientific

claim, proclaims in real life, where speculation ends, positive science; the representation of the
practical activity, of the practical progress of development of men, begins. Whilst Marx’s
materialism does not refer to the assumption of a logically argued ontological position, Marx
adopts an undoubtedly Realist position, in which ideas are the product of the human brain in
sensory transaction with a knowable material world.

These claims contrast with those of natural lawyers such as Aquinas who believe religion should
normatively guide law; those desiring utilitarian tendencies such as Austin and Bentham; or
objective consistency as some positivists such as Hart, or perhaps integrity, as perhaps only
Dworkin can fully endorse. Nevertheless, whilst debate as to the scientific credentials of
Marxism continue, Collins claims Marxism’s desire for class reductionism to explain the
dynamic interaction between man and nature risks misconstruing the diversity of social
phenomena in order to confirm the ‘rigid systemic framework of historical materialism’.

Law and the Dictatorship of the Proletariat

Law, morality, religion, are to him so many bourgeois prejudices, behind which lurk in ambush
as many bourgeois interests.

Marxism saw development of the relations of production dialectically, as both inevitable, and
creating hostility. Accelerated by increased class consciousness, as the contradictions of
capitalism perforate the bourgeois hegemony, inevitable revolution and a dictatorship of the
proletariat would facilitate “socialised production upon a predetermined plan.” Given the
scientific nature of Historic Materialism, and upon recognising the role the state and its laws
supply, the proletariat will seize political power and turn the means of production into state
property, then according to Marxist jurisprudence, “As soon as there is no longer any class to be
held in subjection; as soon as class rule and the individual struggle for existence … are removed,
nothing more remains to be repressed.”

Communism and the End of Law

Page 73 of 208
The meaning of history, that man’s destiny lies in creation of a Communist society where “law
will wither away”, as men experience a higher stage of being amounting to the realization of true
freedom, will after transition through Socialism, be achieved.

Justice and Rights

Communism abolishes eternal truths, it abolishes all religion, and all morality, instead of
constituting them on a new basis.

Marxism argues there is no absolute concept of justice, justice being dependent on the
requirements of a given mode of production. Lukes claims Marx believes justice, “Does not
provide a set of independent rational standards by which to measure social relations, but must
itself always in turn be explained as arising from and controlling those relations”.

Marxism believes that rights are simply a bourgeois creation, and that justice is something only
the rich can achieve in capitalist modes of production. Anatole France (1894) encapsulated this
distinction between formal and substantive justice as entitlement, drawing attention to “the
majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to
beg in the streets and to steal bread.” Formal justice as entitlement therefore allows equal
opportunity to the individual without any reference to the unequal ability to use it, with rights
only being anti-socialist if individuals are taken to be “inherently and irredeemably self-
interested.”

Marxist dispute over how rights and justice will operate in practice are answered by the
materialist proposition that the “distribution of burdens and benefits should not be taken in
accordance with a book of rules, but in the light of the objectives of social policy.” Campbell
distinguishes between Socialist and Bourgeois Rights, arguing that an interest based theory of
rights, rather than the contract based notions such as Pashukanis’ incorporated in his commodity
exchange theory of law, allow protection of the individual32, thereby negating the logical
connection between rights and justice.

Marxist jurisprudence and Marxist critiques of law provide invaluable challenges to our thinking
as people under law in a liberal democratic society. This essay is only the briefest of
introductions in a field rich with reflections concerning the assumptions we construct into our

Page 74 of 208
law. Whether you accept the claims of its doctrine, its influence on shaping the society we live in
is more significant than most of us realize.

American Realist School of Jurisprudence

The realism is the antithesisof idealism. Some jurists refuse to accept the realist schoolas a
separate school of jurisprudence. American realism is a combination of theanalytical positivism
and sociological approaches. It is positivist in that it first considersthe law as it is. On the other
hand, the law as it stands is the product of many factors. Inas much as the realists are interested
in sociological and other factors that influence thelaw. Their concern, however, law rather than
society. Realists don’t give any importanceto laws enacted by legislature. And they uphold only
judgemadelaw as genuine law. Agreat role of judges’ understanding about law, society and also
their psychology affectany judgment given by them. At the same time, in a same case applying
same law twodifferent judges give the different judgments.

Realism denounces traditional legal rules and concepts and concentrates more on whatthe courts
actually do in reaching the final decision in the case. In strict sense, realistsdefine law as
generalized prediction of what the courts will do. Realists believe thatcertainty of law is a myth
and its predictability depends upon the set of facts which arebefore the court for decision. It
presupposes that law is intimately connected with thesociety and since the society changes faster
than law so there can never be certaintyabout law. They do not support formal, logical and
conceptual approach to law. Therealist school evaluates any part of law in terms of its effect.
Jerome Frank has stated,“Law is what the court has decided in respect of any particular set of
facts prior to such adecision, the opinion of lawyers is only a guess as to what the court will
decide and thiscannot be treated as law unless the Court so decides by its judicial
pronouncement. The judges’ decisions are the outcome of his entire life history.”

Meaning and Definition of the American Realism

The insights of legal realism are mainly negative, revealing a deep skepticism about themodel of
rules, about any general and abstract theory of the law. Realism was notconsolidated into a
definite, coherent theoretical system; it can at best be described as a‘movement’ or ‘historical
phenomenon’ rather than a ‘school of thought’. AmericanLegal Realism expressed a set of

Page 75 of 208
sometimes selfcontradictorytendencies rather than aclear body of tenets or a rigorous set of
methodologies or propositions about legaltheory.

According to Roscoe Pound, “Realism is the accurate recording of things as they are,as
contrasted with things as they are imagined to be or wished to be or as one feels theyought to
be”.According to Friedman, “Realist school prefers to evaluate any part of law in terms ofits
effects”.

Origin and History of the American Realist School:

Legal realism is a school of legal philosophy that is generally associated with theculmination of
the earlytwentiethcentury attack on the orthodox claims of late nineteenthcenturyclassical legal
thought in the United States of America. AmericanLegal Realism is often remembered for its
challenge to the Classical legal claim thatorthodox legal institutions provided an autonomous and
selfexecutingsystem of legaldiscourse untainted by politics.

The realist school has been divided into two parts:

1. Scandinavian Realism, and

2. American Realism

Both are hostile to formalism that treats law as a lifeless phenomenon. Both adoptradical
empirical methods that seek to explain law in terms of observable behavior(examining cause and
effect) and both are antagonistic towards metaphysics and values.Scandinavian Realism is
existed in Europe, Sweden, Norway, England and Scandinaviancountries. This school of realism
was supported by Axel Hagerstrom, A.V. Lundstedtand Karl Olivecrona.

Realist thinking was introduced to American jurisprudence by Oliver Wendell Holmes.Oliver

Holmes has been described as the intellectual inspiration and even the spiritualfather of the
American realist movement. Holmes was skeptical of the ability ofgeneral rules to provide the
solution to particular cases and readily gave credence to therole of extralegalfactors in judicial
decisionmaking.Holmes gave the first and classicexposition of the courtfocusedapproach in
1897, sowing the seeds for realism, in apaper called The Path of the Law.

American Realist Movement:

Page 76 of 208
Realism was not consolidated into a definite, coherent theoretical system; it can at bestbe
described as a ‘movement’ or ‘historical phenomenon’ rather than a ‘school ofthought’. The
realist movement began in the 19th century in America and gainedforce during the
administration of President Franklin D. Roosevelt. The realistmovement in United States
represents the latest branch of sociological jurisprudence.Which concentrates on the decisions of
law courts. Sometime it is called the ‘left wingof the functional school.’ This movement named
as realist because this approach studieslaw, as it is in actual working and its effects. Realism was
a movement without a clearlyarticulated theoretical foundation of its own. Some jurists refuse to
accept realism as aseparate school of jurisprudence. According to Llewellyn, “there is no realist
school assuch, it is only a movement in thought and work about law.” Realism is the
antithesisofidealism. American realism is a combination of the analytical positivism
andsociological approaches. Julius Stone calls the realist movement a ‘gloss’ on the sociological
approach.

Basic Features of Realist School:

Realism denounces traditional legal rules and concepts and concentrates more on whatthe courts
actually do in reaching the final decision in the case. In strict sense, realistsdefine law as
generalized prediction of what the courts will do.

There are certain principal features of realistic jurisprudence as outlined by KarlLlewellyn and
Prof. Goodhart:

1. There has to be a conception of law in flux and of the judicial creation of law.
2. Law is a means to social ends; and every part of it has constantly to be examined for
itspurpose and effects, and to be judged in the light of both and their relation to each
other.
3. Society changes faster than law and so there is a constant need to examine how lawmeets
contemporary social problems.
4. Realists believe that there can be no certainty about law and its predictability
dependsupon the set of facts which are before the court for decision.
5. They do not support formal, logical and conceptual approach to law because the
Courtwhile deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’
ground.

Page 77 of 208
 6. They lay greater stress on psychological approach to the proper understanding of law asit
is concerned with human behavior and convictions of the lawyers and judges.
7. Realists are opposed to the value of legal terminology, for they consider it as tacitmethod
of suppressing uncertainty of law.
8. The realists introduced studies of case law from the point of view which
distinguishedbetween rationalization by a judge in conventional legal terminology of a
decisionalready reached and the motivations behind the decisions itself.
9. The realists also study the different results reached by courts within the framework ofthe
same rule or concept in relation to variations in the facts of the cases, and the extentto
which courts are influenced in their application of rules by the procedural
machinerywhich exists for the administration of the law.

How American Realist School is Different from other Schools of Jurisprudence:

American Realism and Legal Positivism:

Despite their seriousdifferences, American realism and legal positivism share one important
belief. It is thattheir views are similar on the point of difference between ‘the law as it is’ and
‘the lawas it ought to be’. The positivist, according to Hart, look to the established primary
rulesand to secondary rules of recognition that designate law making bodies. Americanrealists
are skeptical about the degree to which rules represent the law. They seek toinvestigate how
courts actually reach their decisions. Karl Llewellyn observed that therealists’ separation of ‘is’
and ‘ought’, is a temporary divorce. The divorce lasts whilethe scholars are discovering what
courts actually do.

American Realism and Sociological Approach:

Realist Schooldiffers from sociological school as unlike the sociological approach, realists are
notmuch concerned about the ends of law but their main attention is on a scientificobservation of
law and its actual functioning. It is for the reason that some authoritieshave called realist school
as the ‘left wing of the functional school.’ Some quarters feelthat realist movement in the United
States should not be treated as a new independentschool of jurisprudence but only a new
methodology to be adopted by the sociologicalschool.

American Realism and Natural Law Philosophy:

Page 78 of 208
Realist schooldiffers from Natural law school as according to natural law philosophy laws are
made bythe Nature or God itself but Realist school believes that laws are made by the judges
orjuristic persons. Natural Law is “discovered” by humans through the use of reason
andchoosing between good and evil. In Natural law school laws are based on the moralityand the
ethics.

Main Jurists of American Realist School & their Theories:

A) Justice Holmes: Bad Man Theory:

The seeds of realism were sown by Justice Holmes. He said that Law is not likemathematics.
Law is nothing but a prediction. According to him, the life of law is logicas well as experience.
The real nature of the law cannot be explained by formaldeductive logic. Judges make their
decisions based on their own sense of what is right.In order to see what the law is in reality, he
adopted the standpoint of a hypothetical‘Bad man’ facing trial. Therefore his theory is known as
Bad Man Theory. This theorysays that a bad man successfully predicts the actual law than other
people. Holmes saidthat law should be looked from bad man’s perspective. On the basis of this
predictionHolmes defined the law as, “Prophecies (ability to predict) of what the court will do
infact and nothing more pretentious.”

B) Justice Gray:

John Chipman Gray only exhibited limited factors in common with the realists. Hisapproach was
certainly as courtorientedas the realists. For Gray the law was simplywhat the court decided.
Everything else including statutes, were simply sources of law.He said, “The law of the State or
of any organized body of men is composed of the ruleswhich the courts, that is, the judicial
organs of that body, lay down for the determinationof legal rights and duties.”

C) Karl N. Llewellyn: A Law Jobs Theory:

Karl Llewellyn was a professor of law at the Columbia University. He confessed thatthere is
nothing like realist school instead it is a particular approach of a group ofthinkers belonging to
the sociological jurisprudence. According to Llewellyn realismmeans a movement in thought and
work about law. Karl Llewellyn outlined the principlefeatures of the realist approach. Which are
as follows:

Page 79 of 208
 1. There has to be a conception of law in flux and of the judicial creation of law.
2. Society changes faster than law, so there is a constant need to improve the law.
3. There has to be a temporary separation between is and ought for the purpose of study.
4. Karl Llewellyn described the basic functions of law as ‘lawjobs’. Law is an‘institution’
which is necessary in society and which is comprised not only of rules butalso contains
an ‘ideology and a body of pervasive and powerful ideals which are largelyunspoken,
largely implicit, and which pass unmentioned in the books’. Law has jobs todo within a
society. These are:
i. The disposition of the trouble case: a wrong. A grievance, a dispute. This isthe
garagerepairwork or the going concern of society with itscontinuous effect upon
the remarking of the order of society.
ii. The preventive channeling of conduct and expectation so as to avoidtrouble, and
together with it, the effective reorientation of conduct andexpectations in similar
fashion.
iii. The allocation of authority and the arrangement of procedures which markaction
as being authoritative; which includes all of any constitution andmuch more.
iv. The positive side of law’s work is the net organization of society as awhole so as
to provide integration, direction and incentive.
v. ‘Juristic method’ to use a single slogan to sum up the task of handling thelegal
materials and tools and people developed for the other jobs to theend that those
materials and tools and people are kept doing their lawjobs,and doing them better,
until they become a source of revelation ofnew possibility and achievement.

D) Jerome Frank: Fathers’ Symbol Theory:

Jerome Frank was initially a practicing lawyer. He served in the Law Department of
theGovernment for about a decade. In 1941, he was appointed as a Judge in the UnitedStates
Circuit Court. He was also a visiting professor of law in Yale Law School. Hisclassic work,
“Law and the modern mind” presents a very close examination of judicialprocess and is full of
practical illustrations. His thesis is that law is uncertain or certaintyof law is a legal myth. He
exploded the myth that law is continuous, uniform, certainand invariable and asserted that the
judges do not make the law, instead they discover it.Frank observes that a judge’s decisions are
the outcome of his entire life history. Hisfriends, his family, vocations, schools, religion, all these

Page 80 of 208
factors are influential.In this regard Jerome Frank has given the Fathers’ Symbol Theory. The
child puts histrust in the power and wisdom of his father to provide an atmosphere of security. In
theadult the counterpart of this feeling is the trust reposed in the stability and immutabilityof
human institutions. Frank suggested that the quest for certainty in law is in effect asearch for a
‘fathers’ Symbol’to provide an aura of security, and although he attributed great prominence to
this factor. He offered it only as a ‘partial explanation’ of what hecalled the ‘basic myth’, and
listed fourteen other explanations as well.Frank emphasized that law is not merely a collection of
abstract rules and that legaluncertainty is inherent in it. Therefore mere technical legal analysis is
not enough forunderstanding as to how law works. Frank accordingly divided realists into two
camps,described as ‘rule skeptics’ and ‘fact skeptics.’ The ‘rule skeptics’ rejected legal rules
asproviding uniformity in law and tried instead to find uniformity in rules evolved out
ofpsychology, anthropology, sociology, economics, politics etc. The ‘rule skeptics’avoided that
criticism by saying that they were not deriving purposive ‘ought’ but onlypredictions of judicial
behavior analogous to the laws of science. Frank called this brandof realism the
leftwingadherents of a rightwingtradition, namely, the tradition oftrying to find uniformity in
rules. The fact ‘fact skeptics’ rejected even this aspirationtowards uniformity. He abandoned all
attempts to seek rulecertaintyand pointed to theuncertainty of establishing even the facts in trial
courts. It is impossible to predict withany degree of certainly how fallible a particular witness is
likely to be, or howpersuasively he will lie.Frank divided realists into two camps, described as
‘rule skeptics’and ‘factskeptics’.

The ‘ruleskeptics’rejected legal rules as providing uniformity in law, and tried insteadto find
uniformity in rules evolved out of psychology, anthropology, sociology,economics, politics etc.
Kelson, it will be remembered, maintained that it is notpossible to derive an ‘ought’ from an ‘is’.
The ‘ruleskeptics’avoided that criticism bysaying that they were not deriving purposive ‘ought’,
but only predictions of judicialbehavior analogous to the laws or science.

Contribution of the American Realist School to Jurisprudence:

The main contribution of realists to jurisprudence lies in the fact that they haveapproached law in
a positive spirit and demonstrated the futility of theoretical conceptsof justice and natural law.
Opposing positivist’s view, the realists hold that law isuncertain and indeterminable in nature
therefore, certainty of law is a myth. Accordingto Friedman, realist movement is an attempt to

Page 81 of 208
rationalize and modernize the lawbothadministration of law and the material for legislative
change, by utilizing scientificmethod and taking into account the factual realities of social life.
According to JuliusStone, “realist movement is a gloss on the sociological approach to
jurisprudence. Heconsiders realism as a combination of the positivist and the sociological
approach. It ispositivist in the sense that it undertakes the study of law as it is and
sociological,because it expects that law should function to meet the ends of society. Thus in his
view,realist school is merely a branch of sociological jurisprudence and a method of
scientificand rational approach to law.

Criticism of American Realist School:

1. The realist approach to jurisprudence has evoked criticism from many quarters. Thecritics
allege that the exponents of realist school have completely overlooked theimportance of
rules and legal principles and treated law as an assemblage ofunconnected court
decisions. Their perception of law rests upon the subjective fantasiesand life experience
of the judge who is deciding the case or dispute. Therefore therecan’t be certainty and
definiteness about the law. This is indeed overestimating the roleof judges in formulation
of the laws. Undoubtedly, judges do contribute to lawmakingto a certain extent but it
cannot be forgotten that their main function is to interpret thelaw.
2. Another criticism so often advanced against realists is that they seem to have
totallyneglected that part of law which never comes before the court. Therefore it is
erroneous to think that law evolves and develops only through court decisions. In fact a
great partof the law enacted by legislature never comes before the court.
3. The supporters of realist theory undermine the authority of the precedent and argue
thatcase law is often made ‘in haste’, without regard to wider implications. The
courtsgenerally give decisions on the spot and only rarely take time for consideration.
Theyhave to rely on the evidence and arguments presented to them in court, and do not
haveaccess to wider evidence such as statistical data, economic forecasts, public
opinion,survey etc.
4. Realist school has exaggerated the role of human factor in judicial decisions. It is
notcorrect to say that judicial pronouncements are the outcome of personality and
behaviorof the judges. There are a variety of other factors as well which has to take
intoconsideration while reaching his decisions.

Page 82 of 208
 5. The realist theory is confined to local judicial setting of United States and has nouniversal
application in other parts of the world like other schools of jurisprudence.

Realism in the Indian Context:

The legal philosophy of the realist school has not been accepted in the subcontinentforthe
obvious reason that the texture of Indian social life is different from that of theAmerican
lifestyle.The recent trends in the public interest litigation widened the scopeof judicial activism
to a great extent but the judges have to formulate their decisionswhen the limits of constitutional
frame of the law by using their interpretative skill. Inother words the judges in India cannot
ignore the existing legislative statutes andenactments. They have to confine their judicial
activism within the limits of the statutorylaw. They are free to overrule the previous decisions on
the ground of inconsistency,incompatibility, vagueness, change of conditions etc. Thus the
Indian legal system,though endows the judges with extensive judicial discretion, does not make
themomnipotent in the matter of formulation of law. The legislative statutes and
enactments,precedents and the rules of equity, justice and good conscience are indispensable part
ofthe judicial system in India. The constitution of India itself provides ample scope for thejudges
to take into consideration the hard realities of socioeconomicand cultural life ofthe Indian people
while dispensing social and economic justice to them.In short, it may be reiterated that though
Indian jurisprudence does not formallysubscribe to the realist’s legal philosophy, it does lay great
stress on the functional aspectof the law and relates law to the realities of social life. Again, it
refuses to accept therealist’s view that Judgemadelaw is the only real ‘law’ and other laws are
worthless,but at the same time it does not completely ignore the role of Judges and the lawyers
inshaping the law. Thus it would be correct to say that the Indian legal system hasdeveloped on
the pattern of sociological jurisprudence as evinced by the post-
independencesocioeconomiclegislation but it considers doctrine of realism alien toIndian society
which has a different lifestyleand social milieu. Undoubtedly, the Indianjudges do have the
liberty of interpreting law in its contextual and social setting keepingin view the social,
economic, political, cultural, historical and geographical variations ofthe Indian society. The
power of review and doctrine of overruling its earlier decisionshas enabled the Supreme Court to
effectuate the socioeconomiccontents of theconstitutional mandatethrough the process of judicial
interpretation and use of itsinherent powers. Thus the Apex Court in Bengal Immunity
Caseoverruled its earlierdecision in Dwarkadas v. Sholapur Spinning Co.and observed that “the

Page 83 of 208
Court isbound to obey the Constitution rather than any decision of the Court, if the decision
isshown to have been mistaken”. Justifying its stand, the Court further observed thatwhere a
constitutional decision affects the lives and property of the public and where theCourt finds that
its earlier decision is manifestly wrong and injurious to the publicinterest, it should not hesitate
to overrule the same.Adopting the same approach Justice B.B. Gajendragadkar in Keshav Mills
v. Income Tax Commissionerobserved that Supreme Court has inherent jurisdiction to reconsider
and revise its earlier decision if it does not serve the interest of the public good.
There are a number of cases where the rules or laws are made by the judiciary. Some ofthe
following cases where Supreme Court played the role of lawmakerare given asbelow:

In Hussainara Khatoon v. State of Bihar, the Supreme Court has held that speedytrial is
an essential and integral part of the fundamental right to life and liberty enshrinedin
Article 21. In Bihar a number of under trial prisoners were kept in various jails forseveral
years without trial. The court ordered that all such prisoners whose names weresubmitted
to the court should be released forthwith. Since speedy trial is being held to bea
fundamental right guaranteed under Article 21 of the Constitution of India. TheSupreme
Court considered its constitutional duty to enforce this right of the accusedperson.

In Shri Ram Food and Fertilizer case, the Supreme Court directed the
company,manufacturing hazardous and lethal chemicals and gases posing danger to
health and lifeof workmen and people living in its neighborhood, to take all necessary
safety measuresbefore reopening the plant.

In Ganga Water Pollution case, the petitioner sought the direction from the
SupremeCourt restraining the respondents from letting out trade effluents into the river
Ganga tillsuch time they put up necessary treatment plants for treating the trade effluents
in orderto arrest the pollution of water in the said river.

InParmanand Katara v. Union of India, the Supreme Court has held that it is aparamount
obligation of every medical (private or government) to give medical aid toevery injured
citizen brought for treatment immediately without waiting for proceduralformalities to be
completed in order to avoid negligent death.

Page 84 of 208
 In M.C. Mehta v. State of Tamil Nadu, it has been held that the children cannot
beemployed in match factories which are directly connected with the
manufacturingprocess as it is a hazardous employment within the meaning of
Employment of ChildrenAct 1938. There can, however, be employment packing process
but it should be done inare away from the place of manufacture to avoid exposure to
accident. Every childrenmust be insured for a sum of Rs. 15,000/andpremium to be paid
by employer as acondition of service.

Dealing with a case pertaining to water pollution in case of Vellore Citizens Welfare
Forum v. Union of India, the Supreme Court directed 162 tanneries in Tamil Nadu tobe
closed because these were polluting the air and the water around the area where theywere
operating and the water had been unworthy for drinking.

In M.C. Mehta v. Union of India, with a view to preserve environment and

controlpollution within the vicinity of tourist resorts of Badkhal and Surajkund the
courtdirected the stoppage of mining activities within two kilometer radius of these
twotourist resorts.

In a significant judgment in Vishakha v. State of Rajasthan, the Supreme Court haslaid

down exhaustive guidelines for preventive sexual harassment of working women inplace
of their work until any legislation is enacted for this purpose.

As we know that American realism is a combination of the analytical positivism andsociological

approaches. Realists define law as generalized prediction of what the courtswill do. Realists
believe that certainty of law is a myth and its predictability dependsupon the set of facts which
are before the court for decision. Legal realism emerged asan anti-formalistand empirically
oriented response to and rejection of the legal formalism. Legal realism operates on a premise
that is adhered to by most laymen andmany who have legal training: that "the law," whatever that
may be, is concerned withand is intrinsically tied to the realworldoutcomes of particular cases.
Proponents oflegal realism say it is not concerned with what the law ‘should’ or ‘ought’ to be,
but thatlegal realism simply seeks to describe what the law is. Proponents of legal
formalismdisagree, saying that ‘law’ is what is commanded by a lawgiver,that judges are not
lawgivers,and that what judges do, while it might belong to the field of law, is not ‘law’ butlegal
practice. American realism jolted legal positivism out of its complacency byquestioning widely

Page 85 of 208
held assumptions about the nature of rules. Realism prompted therethink of legal positivism that
was brilliantly undertaken by scholars like Hart and Raz.It forced positivists to distance
themselves from formalism and to reconsider the natureof legal language and judicial
discretion.American Legal Realism is often remembered for its challenge to the Classical
legalclaim that orthodox legal institutions provided an autonomous and self-executingsystemof
legal discourse untainted by politics. Unlike Classical legal thought, American LegalRealism
worked vigorously to depict the institution of law without denying or distortinga picture of sharp
moral, political, and social conflict. The most important legacy ofAmerican Legal Realism is its
challenge to the Classical legal claim that legal reasoningwas separate and autonomous from
moral and political discourse.

Unit- III
Legal Concepts
The end of law is not to abolish or restrain, but to preserve and enlarge
freedom. For in all the states of created beings capable of law, where
there is no law, there is no freedom.

―John Locke

Rights and Duties

Right and duties are the very important element of law. The term ‘ Right’ has various meanings
such as correct, opposite of left, opposite of wrong, fair, just and such like other expression etc.
But in legal sense a right is a legally permissible and protected action and interest of a man group
or state.

According to Austin: “Right is a standard of permitted action within a certain sphere. He

further define right is a party has a right when others are bounds to obligesed by law to do or
not to do any act.”

According to Salmond :“ It is an interest recognized and protected by the rule of justice/law.”

According to Gray:“Right is not an interest itself but it is the means by which the enjoyment of
an interest in secure.”

According to Prof. Allen: “The essence of right not a legal guarantee in itself but a legally
guaranteed power to realized an interest.”

Page 86 of 208
Elements of Rights

1. Subject: The subject of a right is concerned with the person legal and artificial or a group
who legally is entitled to seek the privilege and benefit of against other. In other words
the subject is that the person whom the right is vest.
2. Content: This is the subject matter of the right along-with the nature and limits of that
right.
3. The person of Incidence: It means that the person upon whom falls the corrective duty.
4. Object: The object of the right may be material or immaterial determinate or
indeterminate.

Characteristics of Rights

1. Right is a general o specific type of claim, interest or such like expression of the people
in a State.
2. The right is duly recognized and approved by the State through its agencies.
3. A legal right is expressed a deep correlation with a corresponding duty, liability or
disability on the part of those against whom such right is conferred.
4. A right may has its independent existence and type of assemblies with other rights.
5. Basic philosophy or the fundamental concept of right remains permanent but with the
time being it is subjected to incorporate the allied changed in it.
6. The realization and scope of a legal right depends upon the type of society and the nature
of interest.

Theories of Rights:

There are two main theories of legal right:

1. Will theory: The will theory says that the purpose of law is to grant the individual i.e.
self expression or positive declaration. Therefore right emerges from the human
will. The definition of right given by Austin and Holland, “ that the will is the main
elements of a right.” Pollock says, “ that right in term of will.”
2. The Interest Theory:- Interest is the basis of right. A great german jurists defines about
the legal right as, “ A legally protected Interest.” According to him the basis of right is
“Interest” and not “will”.

Page 87 of 208
The definition of law is in term of ‘purpose’ that law has always a purpose. In case of right the
purpose of law is to protect certain interest and not the wills or the assertions of individuals.
These interests are not created by the State but they exist in the life of the community itself.

Types of Rights

1. Primary and secondary Right: They are known by Antecedent and remedial rights names
also.
2. Perfect and imperfect Right: Means which has a correlative positive duty.
3. Negative and Positive Right:-Positive means related to duty whereas negative means not
related to duty.
4. Right in Rem and Personam.
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.

The term “Duty” may be used in various form as an obligation, as responsibility and
accountability. According to Gray, “Duty is the act of or forbearance which an organized society
used to impose on people through state in order to protect the legal right of other.” According
to Rose “Duty is the Pre-dicament of person whose act are liable to be control with the
assistance of the State.” As per Hohfeld, “The duty is the correlative of Right.”

Classification of Duties:

1. Positive and Negative Duty: A positive duty implies some act on the part of person on
whom it is imposed. Negative duty implies some forbearance on the part of the person on
whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that which exists perse and independent
of other duty. A secondary duty is that duty whose purpose to enforce some other duty.

Essentials of Duty:

(i) It may be dependent and independent.

(ii) It consists an obligation on the part of someone and confirm a privilege upon other.

Page 88 of 208
 (iii)The concept of duty is affirmed and protected by the law of the land where it exist.
(iv) The concept of duties is a changing process which arises from time to time, place to place
and circumstances to circumstances.
(v) Duty in most of the cases creates an absence of right against some person.
(vi) Duty may be fundamental, legal or moral in character.

Relation between Right and Duties:

The following objects describes the correlation between right and duties:

i. A right is indispensible without any duty.

ii. A duty and right has separate and independent existence.
iii. A right procreates duty and vice-versa.

Even though right and duties are opposite points but there is a great relation between two
relations. The right and duties has a relation of Father and Child, Husband and Wife because
there is no father without child and no wife without husband. So right and duties cannot be
separated form each other.

Right/Claim Liberty or privilege Power Immunity

Duty No claim Liability No liability

(Jural opposites) (Jural correlative)

Right and duties are correlative of elements of each other. There is no right without duty and
there is no duty without right. These are recognized by law for maintaining the society very
well.

Rights without Duties

Hohfeld, a legal philosopher, emphasized the relationship between rights and duties and also the
difference between right and privilege. Hohfeld emphasized that there cannot be a right without a
duty. Right in one person presupposes a duty in another. The concept of a right without a duty is
meaningless. Likewise he also distinguished between rights and privileges. A privilege is
available on sufferance. It is a discretion vested in the person granting it. A right is an
entitlement. On this analysis what are commonly called rights to employment, welfare, etc., are

Page 89 of 208
not rights. A right to employment is meaningless because there is no person who is under a duty
to employ. Welfare is not a right. It is a privilege which is given to certain persons.

Whether one agrees with this analysis or not, it is undeniable that at the commonsense level a
right involves a duty in another person or institution. As an essential commonsense corollary, it
must also involve an acceptance of that duty by the person who is subject to it. It is ironic in
society today that while more and more people are demanding rights, fewer and fewer people are
concerned about duties, least of all those who are most vocal in the assertion of rights.
Governments, the Human Rights Commission and many other government agencies provide
doubtful leadership in this regard. They are educating people about their rights and are
attempting to make more and more rights available with no reference to logic and commonsense.
But they seem unconcerned about the need to educate people about duties and the importance of
a sense of responsibility.

A dangerous byproduct of the welfare state and the growth of government is a profound
attitudinal change in society which makes people demand more and more and contribute less and
less. This transformation of the social psyche has taken place imperceptibly to the point that it
unconsciously pervades the entire society. The preoccupation with rights (particularly state
created social and economic rights) has become an obsession. Although this is not an intrinsic
evil, the pursuit of rights becomes self-defeating when it is unaccompanied by the commitment
to duties. The pressures exercised by interest groups have become the dominant feature of the
modern era. These demands come not only from the poor and the underprivileged, but also from
privileged academic, bureaucratic, social and business groups. At the same time there is a
deafening silence on the question of individual responsibility.

The interventionist welfare state has become a super patriarchal entity from which individual
members have come to expect solutions to all problems. Rights are being demanded and duties
forgotten.

The Bible emphasizes duties and responsibilities (not rights). The Ten Commandments are
duties. Duties have been more important than rights in the Australian Achievement. The
emphasis on rights to the near exclusion of duties and responsibilities in modern society is a
challenge. There is a grave danger in the push towards legislative recognition of subjective (so-
called) rights in response to the demands of politically influential pressure groups.

Page 90 of 208
A duty-centred society is preferable to a right-centred society. If individuals are concerned about
their duties, responsibilities and obligations, they cannot but be concerned about the rights and
freedoms of others. A right-centred society is one in which individuals assert their rights. They
are encouraged by the Human Rights Commission and like Commonwealth and State bodies, to
demand rights, with no consideration for the effect of those demands on other people, eg the
right to protest and demonstrate conflicts with the right of pedestrians and motorists to use the
public roads for the purpose for which roads are built.

Governments and pressure groups which focus on rights, give no thought to how rights can
operate in the absence of a climate in which the importance of duties is emphasised.

There is no end to the so-called rights which can be demanded. A right-conscious society, in
effect, recognizes a few rights and neglects many others. The rights that are recognized are those
which are demanded by the powerful, the aggressive and the nasty.

There cannot be a right without a duty. An endless cacophony of demands by interest groups for
rights has become a dominant feature of the modern Australian State (fed by legislation which
encourages these demands). At the same time there is a deafening silence on the question of
individual responsibility. The time has come to realise and to emphasize that rights, whether
material or political, depend on the discharge of duties. Wealth and prosperity are created by
effort. Only continuing effort can sustain them. Western societies through effort have achieved a
level of prosperity unparalleled in history. History has continually demonstrated that the greatest
of civilizations decline and fall when they succumb to indulgence at the expense of discipline
and endeavour. The fate of Egyptian and Roman civilizations are prime examples. It is not too
early for Western Civilization.

Law is a set of rules to regulate human conduct. Human conduct is regulated by conferring rights
and imposing duties. This regulation takes place by enforcing legal machinery. As far as concept
of rights is concerned, it evolved in classical era. Ancient Indian society was duty based society.
Duty based towards God, duty towards parents. But, today concept of right has become quite
important. According to common men, rights mean anything which is permitted. In ordinary
parlance, right is standard of permitted behavior in a certain sphere and anything against that
would be wrong. Example: Moral rights, rights according to religion. As far as legal rights are

Page 91 of 208
concerned it is the standard of permitted behavior according to law. The term „wrong and „duty‟
are closely connected to rights; so it is important to discuss them before discussing legal rights.

According to Salmond, “A duty is an obligatory act”. This is to say, it is an act opposite of

which would be a wrong. The duties and the wrongs are not strictly identical. Duties and wrongs
are correlatives. The commission of wrong is the breach of duty and performance of a duty is the
avoidance of wrong. Yet not all the acts which a man ought to do constitutes duties1 . When the
law recognizes an act as a duty, it commonly enforces the performance of it, or punishes the
disregard of it, or punishes the disregard of it. But this sanction of legal force is in exceptional
cases absent. A duty is legal because it is legally recognized, not necessarily because is legally
enforced or sanctioned. There are legal duties of imperfect obligation, as they are called, which
will be considered by us at a later stage of inquiry. Duty in the strict sense is an act which one
ought to be done in respect of the otherϖ person and correspondingly other person has a right
against former one. Duty can be divided into four classes: (i) Legal and moral duty. (ii) Positive
and negative duty. (iii) Primary and secondary duty (iv) Absolute and relative duty

Legal Duty:- It is an act recognized as a duty by law and treated as such for the administration of
justice. A legal duty is an act and the opposite of which is a legal wrong. (II) Moral Duty:- An
act which ought to be done according to the dictates of morality. It can also be defined as an act
the opposite of which is a moral or natural wrong. Example: If a person is in problem at the time
of swimming then the person stands nearby, has a moral duty to rescue him if he knows
swimming. (III) Positive Duty:- When the law obliges us to do an act, the duty is called positive
duty. (IV) Negative duty:- When the law obliges us to forbear from doing an act, the duty is
negative.

Duty in the Strict sense: An act which one ought to be done in respect of the otherperson and
correspondingly other person has a right against former one.

Duty can be divided into four classes:

(i) Legal and moral duty.

(ii) Positive and negative duty.
(iii) Primary and secondary duty
(iv) Absolute and relative duty.

Page 92 of 208
Legal Duty:-It is an act recognized as a duty by law and treated as suchfor the administration of
justice. A legal duty is an act and the opposite of which is a legal wrong.

Moral Duty: An act which ought to be done according to the dictates ofmorality. It can also be
defined as an act the opposite of which is a moral or natural wrong.

Example:If a person is in problem at the time of swimming then theperson stands nearby, has a
moral duty to rescue him if he knows swimming.

Positive Duty:-When the law obliges us to do an act, the duty is calledpositive duty.

Negative duty:-When the law obliges us to forbear from doing an act,the duty is negative.

Legal rights are those rights which are recognized and protected by law.Rights are concerned
with interest. Interests are something to the advantage of a person. Interest has been defined as
interests protected by rules of rules of right, which is by moral and legal rule. Yet rights and
interest are not identical.

For Example:A man has an interest in his freedom or his reputation. His rightsto these, if he has
such rights, protect the interest, which accordingly form the subject of his rights but are different
from them. To say he has an interest in hisreputation means that it is to his advantage to enjoy a
good name, to say he has a right to this imply that others ought to take from him3.

Right: One cannot impose his right without the assent of the state.

Might:One can impose his/her right without the assent of the state.

Every right has two elements i.e.

(i) the “material element” of interest like reputation, property, money, etc. and

(ii) the “formal elements” like capacity, power to realize the interest, etc. Thedefinitions of right
given by different jurists are mostly based on either one or the other elements of right.

Definitions of Right Basing on Formal Elements (Will Theory):

Austin: According to Austin, right is “faculty which resides in a determinate partyor parties by
virtue of a given law and which avails against a party or parties (or answer to a duty lying on

Page 93 of 208
party or parties) other than the party or parties in whom it resides.” According to him, a person
can be said to have a right only when another or others are bound or obliged by law to do
something or forbear in regard to him. It means that a right has always a corresponding duty.
This definition is not quite satisfactory as every right implies a corresponding duty, but every
duty does not imply a corresponding right.

Holland: Holland defines legal right as the “capacity residing in one man ofcontrolling, with the
assent and assistance of the state the action of others.” Hefollowed the definition given by
Austin. The only thing is in place of “faculty” he used the term “capacity”. This definition
involves the following results.

Gray: Gray defines a legal right as “that power which a man has to make a personor persons do
or refrain from doing a certain act or certain acts, so far as the power arises from society
imposing a legal duty upon a person or persons”. He points out that “the right is not the interest
itself; it is the means by which the enjoyment of the interest is secured. If it is my interest to
receive a watch from X and if by the law X is bound to give it to me, I have a legally protected
interest and I have a legal right. The legal right, however, is not the giving of the watch. It
consists in my power to get the watch from X.

Definition of Right basing on Material Element (Interest Theory):

The above definitions of Austin, Holland, Gray etc. stressed the „formal element‟ like capacity,
interest etc. Another group of writers defines right in terms of „material element‟. Ihering and
Salmond belong to this class of writers.

Ihering: Ihering defines rights as „legally protected interests‟. The protection ofhuman interests
is the chief purpose of social organization. The law, however, does not protect all such interest.
The interests of men conflict with one another and law, being the rule of justice, appraises such
interests and selects only some for protection. He regards as legal rights such of these interests as
have obtained legal protection.

Salmond: He says “A right is an interest recognized and protected by rules ofright, that is by
legal rules. It is an interest respect for which is a duty, and disregard of which is a wrong.”4

Reconciliation between the will and Interest theory:

Page 94 of 208
Allen tries to bring about such reconciliation. According to him, the essence of a legal right
seems to be legally guaranteed power by itself nor legally protected interest by itself, but the
legally guaranteed power to realize an interest. Thus, we can conclude, right is the exercise of
will power directed towards the enforcement of interest or protection and recognition of interest.

Characteristics (or Elements or Ingredients) of Legal Rights

According to John Salmond, Legal rights involve five essential elements:

1. Subject: Right is vested in a person who may be the owner of the right,the subject of it,
the person entitled, or the person of inheritance.
2. Object: A legal right operates against some person who is under a dutyor obligation to
obey or respect that right. He may be distinguished as the person bound, or as the subject
of the duty, or as the person of incidence.
3. Content: There is some content or substance of a legal right i.e. the actor forbearance by
which the person in obligation is bound.
4. Acts: There is the act or omission relates to something, which may betermed as the object
or subject matter of the right.
5. Title: Every legal right has a title, that is to say, certain facts or eventsby reason of which
the right has become vested in its owner.

Illustration:

If X sells a piece of land to Y by sale deed than Y becomes the owner of the property. Y has all
the rights over that property. Y is the person of inheritance. Thus, Y is the subject of the right.
Now, X and all other persons have a duty not to interfere with the possession or ownership or
any other rights of Y. Thus, the object of right or subject of duty is in rem. X is obliged to give
possession and ownership of the property to Y after the sale and X is obliged not to interfere with
Y’s possession. Thus, possession, ownership, non-interference are the contents of the right. Piece
of land is the subject-matter of the rights. Every right is created by certain acts or omission. In
this case, it is done by deed of conveyance, so, it is the title of the right.

Hohfeldian Analysis of Legal Rights

Historical Background:

Page 95 of 208
The concept of legal right has undergone change in last century. Thomas Hobbes discussed two
terms right in strict sense and liberty. After several jurist, Bentham, Austin and Salmond further
explained various terms for the word „right‟ i.e. right in strict sense, liberty and power. In 1913,
Professor Hohfeld, an American jurist, rearranged and completed Salmond‟s scheme by adding a
fourth term immunity and worked out a table of jural relations. According to modern jurist, term
right is like a homo name which includes within its sweep.

Legal Right in stricto senso means that there is a corresponding duty and are defined as interests
which the law protects by imposing corresponding duties on others.

Legal rights in wider sense not necessarily include the corresponding duty. The „right‟ in wider
sense has been identified with powers, privilege and immunities. Salmond says, In generic sense,
a legal right may be defined as any advantage or benefit conferred upon a person by a rule of
law.

According to Salmond: “A duty is a obligatory act, that is to say, it is an actopposite of which

would be a wrong. Duties and wrongs are correlatives. TheCommission of a wrong is the breach
of the Duty and the performance of a duty is the avoidance of wrong.”

Duties are of two kinds:-

(1) Legal, and

(2) Moral

A Legal Duty is an act the opposite of which is a legal wrong. It is an act recognized as a duty by
law and treated as such for the administration of justice. A moral or natural duty is an act the
opposite of which is a moral or natural wrong. A duty may be moral but not legal, or legal but
not moral, or both at once. In the case of England, there is a legal duty not to sell or have for sale
adulterated milk knowingly. There is no Legal Duty in England to refrain from offensive
curiosity about one’s neighbors even if it’s satisfaction does them harm. There is a moral duty
but not a legal duty. There is both legal & moral duty not to steal.

Duties may be Positive or Negative. When the law obliges us to do an act, the duty is called
Positive. When the law obliges us to forbear from doing an act, the duty is negative. If R has a
right to a land, there is a corresponding duty on a person generally not to interfere with exclusive

Page 96 of 208
use of the land. Such a duty is a negative duty. It is extinguished only if the right itself is
extinguished. If S owes a sum of money to Y, the latter is under a duty to pay the amount to due.
This is a positive duty. In the case of Positive duties, the performance of the duty extinguishes
both duty and right but a negative duty can never be extinguished by fulfillment.

Duties can also be primary & secondary. Primary duties are those which exitsperse and
independently of any other duty. An example of a Primary duty is to forbearfrom causing
Personal Injury to another. A Secondary duty is that which has no independent existence but
exists only for the enforcement of other duties. An example of a secondary duty is the duty to
pay a man damages for the injury already done to his person. It is also called a remedial,
restitutory or sanctioning duty.

According to Salmond, If a law recognizes an act as a duty, It generally enforces its performance
and punishes these who disregard the same.

According to Keeton, a duty is an act or forbearance compelled by the state in respect of a right
vested in another and the breach of which is wrong.

According to Hibbert, Duties are imposed on persons and require acts and forbearances which
are their object. Hibbert refers to absolute and relative duties. Absolute duties are owed only to
the state. The breach of an absolute duty is generally a crime and remedy is the punishment of
the offender and not the payment of any compensation to the injured party. Relative duties are
owed to aperson other than the one imposing them. The breach of a relative duty is called a civil
injury and its remedy is compensation or restitution to the injured party .

According to Austin, some duties are absolute. Those duties do not have a corresponding right.
Examples of absolute duties are self-regarding duties such as a duty not to commit suicide or
become intoxicated, a duty to intermediate persons or the Public such as a duty not to commit a
nuisance, a duty to one not a human being such as a duty towards God or animals and a duty to
sovereign or state.

If we examine these four classes of duties critically, they are reduced to one category and that is
the duties to the state. A duty not to commit suicide or nuisance is enforced by the state and can
be included in the categories of duties to the state. The result is that the corresponding right vests
in the state. However the view of Austin is that „‟A sovereign government in its collegiate or

Page 97 of 208
sovereign capacity has no legal rights against its own subjects “and there for the duties towards
the state are absolute duties.

The views of Austin is criticized by Gray,Pollock & Salmond. According to salmond:there can
be no duty without a right any more than there can be a husband without a wife or parent without
a child.” The result is that rights and duties are always correlated and there is absolutely no scope
for absolute duties. The views of Pollack is that, “there seems to be no valid reason against
ascribing rights to the state in all cases where its officers are enjoined or authorized to take steps
for causing the law to be observed and breakers of the law to be punished”.

Relations between Rights & Duties:

It is debatable question whether rights & Duties are necessarily correlative. According to one
view, every right has a corresponding duly. Therefor, there can be no duty unless there is
someone to whom it is due. There can be no right without a corresponding right, just as there
cannot be a husband without a wife, or a father without child . Every Duty is a duty towards
some person or persons in whom a corresponding right is vested. Likewise, every right is a right
against some person or persons upon who a correlative duty is imposed. Every right or duty
involves a vinculum juris or a bond of legal obligation by which two or more persons are bound
together. There can be no duty unless there is someone to whom it is due. Likewise, there can be
no right unless there is someone from whom it is claimed.

According to Holland, Every Right implies the active or passive forbearance by others of the
wishes of the party having the right. The forbearance on the parts of others is called a duty. A
moral duty is that which is demanded by the public opinion of society and legal duty is that
which is enforced by the power of the state .

According to keeton:, A duty is an act of forbearance which is enforced by the state in respect of
a right vested in another and the breach of which is wrong. Every right implies a co-relative and
vice versa.

The views of salmond is that rights and duties are co-relative. If there are duties towards the
public, there are rights as well. There can be no duty unless there is some person to whom that
duty is due. Every right or duty involves a bond of obligation.

Page 98 of 208
In Minerva Mills Ltd. v. Union of India, the Supreme Court observed: There may be a rule which
imposes an obligation on an individual or authority, and yet it may not be enforceable in a court
of law, and therefore not give rise to a corresponding enforceable right in another person. But, it
would still be a legal rule because it prescribes a norm of conduct to be followed by such
individual or such authority. The law may provide a mechanism for enforcement of this
obligation, but the existence of obligation does not depend upon the creation of such mechanism.
The obligation exists prior to and independent of, the mechanism of enforcement. A rule
imposing an obligation would not there for cease to be a rule of law because there is no regular
Judicial or Quasi-Judicial machinery to enforce its command. Such a rule would exist despite
any problem relating to its enforcement.”

The other school is represented by Austin. According to him, Duties are of two kinds:Absolute
Duties andRelative duties.

Relative duty corresponds to a right. It is a duty to be fulfilled towards a determinate superior.

All absolute duties are enforced criminally. They don’t correspond with rights in the sovereign.
There is an absolute duty in certain cases. Those are duties not regarding persons e.g. Those
owed to god and lower animals, duties owed to persons indefinitely e.g. towards the community,
self-regarding duties and duties owed to the sovereign. In case of an absolute duty, it is
commanded that an act shall be done or forbidden towards or in respect of the party to whom the
command is directed.

Duties towards the public at large or towards intermediate portions of the public have no co-
relative rights. The duty to refrain from committing a public nuisance has no co-relative rights.
Where trustees held property on trust for religious purposes, even though there is no ascertained
beneficiary, the trustees are under aduty not to use the property for a purpose pother then
religious purpose. The question is to whom the duty is due.

Jural Relations

Legal right in a strict sense constitutes the correlatives of legal duties. From a wider sense the
term legal rights include concept of (strict sense), liberty, power and immunity. Hohfeld arranged
the four incidents in tables of „correlatives‟ and „opposites‟ to display the logical structure of his

Page 99 of 208
system. Further it was Professor G.L. Williams, who presented the four incidents in two tables
with the help of which, another jurist were able to find out other relations- Jural Contradictions.

Jural Correlatives

Jural correlatives signify something which is mutual, complementary reciprocal or

corresponding.

Jural correlatives signify two things that occur together.

CLAIM LIBERTY POWER IMMUNITY

DUTY NO-CLAIM LIABLITY DISABILITY

The jural correlatives are showed by vertical arrows. There are types of rights and co relatives:

(i) Claim and Duty.

(ii) Liberty and No-claim.

(iii) Power and Liberty.

(iv) Immunity and Disability.

(I) (Right) Claim and Duty relationship (You ought):

CLAIM

DUTY

If X has a claim against Y and Y has a duty towards X than X will use the term-You ought/ you
shall/ you must.

Page 100 of 208

Example: A contract between employer (X) and employee (Y) confers on the employee (X) a
right to be paid his wages. This right is a claim. The employee has a claim. The employee has a
claim that the employer pays him his wages and the employer is under the strict duty to pay him
the wages.

If under article 14 of the constitution, state is under the duty to maintain equality, it means
citizens have a claim not to be discriminated.

(ii) Liberty and No-Right/No- claim (I May):

LIBERTY

NO-CLAIM

Example:Y is running a bookstore for many years and later X opens anotherbookstore across the
strict then definitely due to the cut throat competition theprofits of Y may drop. Y cannot prevent
X from continuing his business because Y has no-claim to prevent X doing business, which is
X‟s liberty (right).

Freedom of speech and expression. „X‟ has freedom of speech and expression. „X‟ may/mayn‟t
speak.

(iii) Power and liability (I Can):

POWER

LIABLITY

Power denotes ability in a person to alter the existing legal condition of the other person for the
better or worse. When the legal status is altered by volition act, it is power. When legal condition
is altered by non-volition act, it is subjection. Power is ability on the part of a person to produce

Page 101 of 208

a change in a given relation by doing ornot doing a given act. The correlative of a power is
liability. These Hohfeldian incidents define what Hart called “Secondary rules”. The Hohfeldian
power is the incident that explains how agents can alter primary rules.

If X has a power to alter the legal condition of Y then X will expressed it as- “I Can”.

Example:Police power to arrest. If X, a policeman has power to arrest and Ycommits an offence.
X can arrest Y and Y is under the liability to be arrested.

Power is also of two types:

Private Power- Private Power is those which are vested in a person and are to beexercised by
him for his own purpose. Private power is called capacity.

Example: Power to make a will or power to make a gift.

Public Power- Pubic power which are vested in a person as an agent of the state.

Public power is also called authority.

Example: Police Power to arrest, judicial authority to remind power of legislature to make laws.

(iv.) Immunity and Disability (You Cannot):

IMMUNITY

DISABILITY

Immunity connotes exemption from the legal power of some other person. It is an exemption
enjoyed from having a given relation changed by another.

For Example: If X is immuned w.r.t to Y then X will say- “You cannot”.

Under the constitution, The President of India can‟t be sued for certain civil or criminal wrongs.
This is immunity from prosecution. It means prosecuting authorities are disable to prosecute the
President.

Page 102 of 208

Jural Opposites

Jural opposite signify that which is diametrically different in character and tendency. In other
words, no pair of opposite can co-exist in the same person.

CLAIM (X) LIBERTY(Y)

DUTY(Y) NO-CLAIM(X)

POWER (X) IMMUNITY(Y)

LIABLITY(Y) DISABILITY(X)

(Jural opposites are presented by diagonal arrows and read both ways.) Jural opposites
are:-

(i.) Claim and no-claim.

Cannot exist in the same

person
(ii.) Liberty and duty,

Page 103 of 208

 iii.) Power and disability.

(iv.) Immunity and liability.

(i.) Claim and no-claim:

Presence of claim in X means absence of No-claim in X.

(ii.) Liberty and duty:

Presence of liberty in Y means absence of duty in Y.

(iii.) Power and disability:

Presence of power in X means absence of disability in X.

(iv.) Immunity and disability:

Presence of immunity in Y means absence of liability in Y.

Jural Contradictory

It was Professor G.L. William who presented the four terms in two tables with the help of which
another jurist were able to find out another relation- „Jural Contradictory‟.

CLAIM (X) LIBERTY(Y)

DUTY(Y) NO-CLAIM(X)

POWER (X) IMMUNITY(Y)

LIABLITY(Y) DISABILITY(X)

Page 104 of 208

 Jural contradictions are presented by horizontal arrows and read both ways.

(i.) Claim and Liberty.

(ii.) Duty and No-claim.

(iii.) Power and Immunity.

(iv.) Liability and Disability.

(i) Claim and Liberty

Presence of claim in X means Presence of duty in Y. Presence of claim duty in Y

means absence of liberty in Y.

Presence of duty in Y means absence of liberty in Y.

(ii) Duty and No-claim

Presence of duty in Y means absence of liberty in Y. Absence of liberty in Y means

absence of No-claim in X.

Presence of duty in Y means absence of No-claim in X.

(iii) Power and Immunity

Presence of power in X means presence of liability in Y. Presence ofliability in Y

means absence of immunity in Y.

Presence of power in X means absence of immunity in Y.

(iv) Liability and disability

Presence of liability in Y means absence of immunity in Y. Absenceof immunity in Y

means absence of disability in X.

Presence of liability in Y means absence of disability in X.

Page 105 of 208

 (I) Claim-Duty Relation (You Shall):

Hohfeld suggested the term claim for the rights in strict sense. Claim signifies same as rights in
strict sense signifies. Right in strict sense simply means having a corresponding duty. Thus, A
claim also means that same person ought to behave in a certain way due to claim lies in a duty.
Duty is the prescriptive pattern of behavior. Duty is the prescriptive pattern of behavior. Thus,
where there is a claim there is a duty.

Does the converse always true? Does it always true where there is a duty, there is a claim? It is a
debatable question whether rights and duties are necessarily correlative. According to Austin
rights and duties are not correlative. He distinguished duties into two categories- Absolute and
Relative. Absolute duties are owned only to the state.

For example:Duty not to commit suicide, duty not to commit murder.

The breach of an absolute duty is generally a crime. Austin argues such duty does not have a
corresponding claim. It is true, state seems to have the claim but it is not true. State is the
enforcing agency of such duty. If police officer arrest any person who has committed murder.
What is the claim of police officer in such circumstances? Answer is nothing. They arrest
because they have been given the authority to arrest such offenders. In such absolute duty, there
is no corresponding claim. Interestingly we find that, such absolute duties are discharged without
having any corresponding claim. In public laws- irrespective of the claim, all persons are under a
duty for an act or forbearance.

Austin agrees that relative duties have corresponding right. Relative duties are owned to a person
other than the one imposing them. The breach of a relative duty is called civil injury.

For example: In case of debt, the debtor owes a duty towards the creditor has the right to take
back the money from the debtor. In private laws, the person who is going to be benefited brings
an action. In case of debt, if creditor brings an action after the limitation period than creditor has
no legal claim. After limitation period, claim lies only in equity. The person may bring the action
or may not. So, on the content of “bringing action” he has the liberty. On the content of „money
or debt he has the claim.

Page 106 of 208

But, According to Salmond there can be no right without a corresponding duty, or duty without a
corresponding right, any more than there can be a husband without a wife and a father without a
child. According to this view, every duty must be a duty towards some person or persons, in
whom, therefore a correlative right is vested. And conversely every right must be a right against
some persons, upon whom, therefore, a correlative duty is imposed.

(II) Liberty and No-Right/No- Claim (I May):

Hohfeld distinguished the freedom which a person has to do or not to do something from claim
(right) and called it privilege; but the term liberty is preferred. For example: A’s so called “right”
to wear a hat consist, on Hohfeld’s analysis, of a liberty to wear the hat and another liberty not to
wear it. Duty and liberty are jurally opposite. According to Hohfeld privilege, thus, means the
freedom which a person has i.e. to do or not to something law cannot interfere in case of
privilege.

Liberty is a legal freedom on the part of one person to do a given act or a legal freedom not to do
a given act. Another person has no no-claim with respect to first person. Liberty cancels out duty
when content is altogether different opposite. Content of duty and content of liberty cannot
reconcile.

For example:If X has a liberty to speak it means he is not under a duty not tospeak.(vice-versa).

Claim-Liberty Relationship:

A claim necessarily implies a corresponding duty but liberty doesn’t imply duty. Austin view is
that “liberty and claim are synonymous”. According to him, the liberty of acting according to
one’s will would be illusory if it were not protected from obstruction. But, this view of him is not
accepted. The reason is in liberty, the prominent idea is the absence of restraint. Protection for
the enjoyment of that liberty is secondary idea. Claim denotes the protection and the absence of
restraint. After removing the restraint, if person wants to do, may do or may not. This is liberty.
Claim remove restraint but liberty gives freedom, further to do or not.

Page 107 of 208

Example: Under Article 19, state protects the intervention of anyone in the freedom of speech
and expression. It is the claim of a citizen to get protection from the state it anyoneinterferes in
his liberty. But, the citizen has a right to freedom of speech and expression or not – it is liberty.

Salmond says, “just as my legal rights (in the strict sense) are benefits which I derive from legal
duties imposed upon other persons, so my liberties (also called licenses or privilege) are the
benefits which I derive from the absence of legal duties imposed upon myself.

According to this correlative – If X has a freedom to certain thing w.r.t. Y, it will be expressed
by X as- I may/ may not.

Power and Liberty (I Can):

Power denotes ability in a person to alter the existing legal condition of the other person for the
better or worse. When legal status is altered by volition act, it is power. When legal status is
altered by non-volition act, it is subjection. Example: Making of will (volition act), earthquake
(non-volition act). It also alters the legal condition of a person by destroying the property.

Power is quite important terns in the second table as duty is in the first table. Power can give rise
to claim, liberty, duty and immunity. For example: Right to make a will is the power of a person.
It is power because it can alter the legal condition of persons specified in the will.

This power can be dissected into liberty to make a will. That person may make a will or may not.
That person has a claim also against other people not to be prevented from making the will. He
has immunities against being deprived of will making capacity. Here we find, power to make a
will gives rise to claim, liberty and immunity but content is different.

Sometimes, a power may be coupled with a liberty to exercise it and a liberty not to exercise it.
Example: Power to make will, power of the President to pardon the accused. This is a rightful
exercise of power.

Sometimes, a power is coupled with a duty to exercise it.

Example:Power of judges to give justice, power of the police officer to arrest.

This is also a rightful exercise of the power.

Page 108 of 208

Sometimes, a power is coupled with a duty not to exercise it.

Example:Vicarious liability- when servant has power to do tort but does not haveduty to do so.
Such exercise of power would be wrongful exercise.

Power may be divided into- “Public” and “Private”. Private power is that power which is vested
in person for his own interest. Public power is that which vested in a person for his own interest.
Public power is that which is vested in a person as an agent of the state, as the judicial or
executive power of the officers. When a public power is coupled with a duty to exercise it is
termed as „ministerial power‟ and when coupled with liberty termed as “discretionary power”.

Liability is the correlative of power. It denotes the position of a person whose legal condition is
altered. It is not the liability in general sense. It is not the liability as in the sense of criminal
liability. The Hofeldian’s liability talks about the position of a person whose legal condition can
be altered. This liability has a very specific meaning.

Example:X executes will against Y. It alters the legal condition of Y. Thisposition is termed as
liability. Will is operative after the death of X then Y gets the claim against the executor.

Thus, this power and liability is one of the important correlatives which give rise to different
terms of Hofeldian table.

(IV) Liability and Duty:

Duty is prescriptive pattern of behavior which a person ought to do. Liability is something
different. It is the position of a person whose legal status can be altered.

Power exercised give rise to new power:

Example: Power to appoint an agent. When agent is appointed, he also gets certainnew powers.

Example: Power to vote. When person is elected. We gets certain power.

Example:Power of the President to call majority to make the government. Thisgives power to the
government.

Power not accompanied/occupied with duty:Wrongful exercise of power.

Page 109 of 208

Example:Vicarious liability.

Example:If X is a thief steals any movable object. He is under a duty not to sell itbut he has a
power to sell a bonafide purchaser (caveat emptor). Because, it is the duty of the purchaser to see
who is the real owner of that property.

(V) Immunity and Disability (You Cannot)

Immunity is defined as a freedom on the part of one person against having a given legal relation
altered by a given act or omission on the part of another person. In simple words, immunity is
freedom from power of any other person. Disability signifies the inability of a person to alter the
legal condition of another person (who is immune). Disability simply means- absence of power,
i.e., no-power.

Example:President of India is immuned from civil and criminal proceedings. Itmeans persons
having power to continue such proceedings are disable to do so w.r.t President.

Example:A diplomatic envoys are immune from the power of action or otherlegal process.
Persons involved in legal process are disable to do so w.r.t. such diplomatic envoys.

Example:Once, Bal Thackerey was stopped from casting his vote for the 6 yearsdue to speech.
He was stopped from enjoying such right by the President.

Immunity, Claim, Duty:

Example: An immunity is not necessarily protected by duty in another person notto attempt an
invasion of it. Or, a person having immunity need not have a claim on that.

For example:If ambassadors, drive and met with an accident. Police officerscome and arrest him.
Though, he is immuned from being arrested but can’t claim against the officer. He can’t sue the
police officers. Here, Police officer are disable but under no duty to pay compensation.17

For example:If X is immuned from taxation, the revenue inspector automatic hasno power to
place him under a duty to pay. A demand for payment is ineffectual but X has no remedy against
them for having made the demand because X has no such claim.

Page 110 of 208

Thus, immunity is one of the important types of right which is included in the widest sense of the
term of ‘right’.

Classification/ Kinds of Legal Right

Legal rights have been classified by various jurists in different ways. Rights may generally be
classified under the following heads:-

1. Perfect and Imperfect Right:

According to Salmond, a perfect right is one which corresponds to a perfect duty. It is not only
recognised by law but also enforced by it. An imperfect right, on the other hand, is one which
though recognised, is not enforceable by law. In other words, a perfect right is one in respect of
which an action can be successfully brought in a court of law, and the decree of the court, if
necessary, enforced against the defaulting judgment-debtor. But an imperfect right is incapable
of legal enforcement18. A time-barred debt is a typical example of imperfect right. In India, the,
creditor or the holder of a promissory note can sue upon it within three years from the date of
debt becoming payable. After the expiry of this time, the debt is barred by time. The limitation,
however, does not extinguish the debt. That is, for certain purposes creditor's rights are still
recognised though the time-barred debt cannot be recovered through a court of law. Firstly, if
the debtor pays the money after it has become time- barred, he cannot later sue to recover it
saying that it being barred by time, was without consideration. Secondly, a fresh promise to pay
the debt in writing, can be enforced and the time-barred debt is treated as a valid consideration
for such fresh promise. Thirdly, if the debtor has given some security, he cannot take back the
things given as security, without paying the debt to the creditor. Thus in case of an imperfect
right, though remedy in a court of law is denied but the right itself does not come to an end.
Likewise, part payment of a time-barred debt converts the imperfect right into a perfect right.

The rights of the subjects against the State are also sometimes classified as imperfect rights
because of their unenforceability. It is, however, submitted that this view seems to be against the
accepted legal notions, the reason being that an ordinary imperfect right is unenforceable
because some rule of law declares it to be so whereas rights against the State are unenforceable

Page 111 of 208

not in this legal sense, but in the sense that the strength of the law is none other than the strength
of the State itself.

1. Positive and Negative Right:

A right is distinguished as positive or negative according to the nature of the co-relative duty it
carries with it. In case of a positive right, the person subject to the duty is bound to do something
whereas in case of negative right, others are restrained from doing something. The positive right
is a right to be positively benefited but a negative right is merely a right, not to be harmed. A
right to receive compensation or damages, or a creditor's right to recover money from the
debtors are examples of positive right. As against this, right of ownership is a negative right for
it imposes on others a negative duty of non-interference with one's right ownership. A right to
reputation is again a negative right in the sense that it imposes a negative duty upon others not to
interfere with it.

The distinction between positive and negative right can be summarised as follows:

1. A positive right corresponds to a positive duty whereas a negative right corresponds to a

negative duty.
2. A positive right involves a positive act while a negative right involves some kind of
forbearance or not doing.
3. A positive right entitles the owner of it to an alteration of the present position to his
advantage whereas a negative right seeks to maintain the present position ofthings.
4. A positive right aims at some positive benefit but a negative right aims at not to be
harmed.
5. A positive right requires an active involvement of others but a negative right requires
only passive acquiescence of other persons.
6. A positive right receives something more than what one already has whereas a negative
right seeks to retain what one already has.
7. A positive right has a mediate and indirect relation to the object while a negative right is
immediately related to the object.
8. Right to the money in one's debtor's pocket is an illustration of a positive right while the
money in one's own pocket is an example of a negative right.

Page 112 of 208

2. Real and Personal Right:

These are also called rights in rem and rights in personam. The distinction between real and
personal rights is closely connected but not identical with that between negative and positive
duties. It is based on the difference in the incidence of co-relative duties. A real right (right in
rem) corresponds to a duty imposed upon persons in general whereas a personal right (right in
personam) corresponds to a duty imposed upon determinate individuals. In other word s, a real
right is available against the world at large while a personal right is available a against a
particular person or persons. The distinction between real and personal right is well illustrated by
an example. My right to the peaceable occupation and use of my land is a right in rem because
all the world is under a duty towards me not to interferewith it. But if I grant a lease of the land
to a tenant, my right to receive rent from him is a right in personam, for it is available
exclusively against the tenant and none else.

It is significant to note that almost all real rights are negative and most of the personal rights are
positive though in a few exceptional cases a personal right may also be negative. For instance, if
I have purchased the goodwill of a business from a trader, he is restrained from competing with
me although all other traders can compete with me. My right of exemption from competition
from that particular trade whose goodwill I have purchased under an agreement is my personal
right which is negative in nature.

3. Proprietary and Personal Right:

The aggregate of a man's proprietary rights constitutes his estate, his assets and his property.
They have some economic or monetary significance and are elements of wealth. For instance,
money in one's pocket or in bank, right to debt, land, houses etc., are proprietary rights. The
personal rights, on the other hand, are elements in one's well-being. They have no monetary
value whatsoever. Examples of personal right are right of reputation, personal liberty, freedom
from bodily harm, right of a husband in respect of his wife or parent in respect of their children.

The distinction between proprietary and personal rights can be summarised as follows:

Page 113 of 208

These terms are derived from Roman law and called jus in rem and jus in personam. The former
means right against or in respect of a thing whereas the latter means right against or in respect of
a person.

Page 114 of 208

 1. Proprietary rights relate to estate of a person which includes all his assets and property in
any form. The personal rights, on the other hand, pertain to the statusof a person.

2. Proprietary rights are elements of a person's wealth whereas personal rights are elements
of his well-being.

3. Proprietary rights are alienable while the personal rights are not alienable. The former are
inheritable whereas the latter are not heritable.

4. Proprietary rights are more static as compared with the personal rights.

4. “Right in Re Propria” and “Right in Re Alinea”:

Literally speaking, right in re propria means right over one's own property and right in re aliena
means right over the property of someone else. The latter may also be called as encumbrances
using1he term in its widest sense.

The most absolute power which the law gives over a thing is called the right of dominium. This
is a real right in a thing which is one's own, and is called right in re propria. But a man may have
rights in property less than full ownership, the dominium being, in fact, vested in another. Such
rights are called rights in aliena.

According to Salmond, "a right in re aliena is one which limits or derogates from some more
general right belonging to some other person in respect of same subject-matter. All oth~r rights
which are not thus limited are juria in re prorpiya For instance, if a person mortgaged_his house,
he has created an encumberance by dividing his proprietary right in the house. The mortgager is
temporarily the owner of the house. The mortgagor has the right to redeem the mortgager. This
right'Status' may be defined as an aggregate of rights and duties which law attaches to a person,
as one of a class, which are incapable of being changed at the desire of persons affected by them
which is now completely detached and separated from the mortgagor's complete ownership is the
right in re aliena because mortgagor's complete ownership is encumbered due to mortgage.

Salmond refers to four kinds of encumbrances, namely : (i) lease, (ii) servitude, (iii) security, and
(iv) trust.

Page 115 of 208

 1. A lease is an encumbrance of property vested in one person by a right to the possession
and use of it vested in another person.
2. A servitude is a right to the limited use of a piece of land unaccompanied either by the
ownership or by possession of it. For example, a right of way or a right t() the passage of
light or water across adjoining land, etc.
3. Salmond defines servitude as that form of encumbrance which consists in a right to a
limited use of a piece of land, without the possession of it, as contrasted with a lease,
which confers the right to possession. For example, an easement right or a profit a
prendre.
4. A security is an encumbrance vested in a creditor over the property of his debtor for the
purpose of securing the recovery of the debt e.g. a. mortgage.
5. A trust is an encumbrance in which the ownership of property is limited by an equitable
obligation to deal with it for the benefit of someone else. The owner of the encumbered
property is called the trustee and the owner of the encumbrance is the beneficiary of the
trust.

Principal and Accessory Right:

The existence of principal rights is independent of any other rights but accessory rights are
ancillary to principal rights and have a beneficial effect on the principal right. For example, if a
debt is secured by a mortgage, the recovery of debt is the principal right while security is the
accessory right. Likewise, if an owner of a piece of land has a right of way on the adjoining land,
the ownership of the land is his principal right and right of way in the adjoining land is accessory
right. The rent and covenants of a lease are accessory to the landlord's ownership of the property.

6. Primary and Secondary Right:

Primary rights are also called the antecedent or substantive rights. Similarly, sanctioning rights
are also called the remedial or adjectival rights. It may be reiterated that sanctioning rights
originate from some wrong i.e., from violation of another's, right whereas primary rights have
some source other than wrongs. Salmond has pointed out that a primary right can either be a
right in rem e.g. one's right not to be assaulted or it may be a right in personam i.e., right of a
promisee that the promiser should perform his part of the contract. If the promiser commits a

Page 116 of 208

breach of the contract, promisee shall have sanctioning right to claim damages. Sanctioning
rights are in personam because they result from violations by specific persons. Aright to sue in a
court of law, is an illustration of a sanctioning right or a remedial right.-

Legal and Equitable Right:

The distinction between legal and equitable right originates form the distinction between law
and equity. Prior to the passing of Judicature Act, 1873, there were two distinct co-ordinate
systems of law in England which were called the Common Law and the Equity Law. At that
time, legal rights were recognised by the Common Law Courts whereas the equitable rights were
recognised by the Court of Chancery which was a Court of Equity. This distinction was,
however, abolished by the fusion of the two courts by the Judicature Act, 1873 but the existence
of Common Law and equity as two distinct branches of law still persists in England. The
methods of their creation and disposition are, however, different. For example, a legal mortgage
must be created by a deed but an equitable mortgage may be created by a mere written
agreement or by the deposit of title deeds.

The general principle regarding equitable rights is that when there are two inconsistent equitable
rights claimed by different persons over the same thing, the first in time shall prevail. But where
there is a conflict between a legal right and an equitable right, the legal right shall take
precedence over equitable right even if it is subsequent to the equitable right in origin,.but the
owner of the legal right must have acquired it for value and without notice of the prior equity.
This principle finds expression in the maxim, 'where there are equal equities, the law shall
prevail.'

The Indian law, however, does not recognise the distinction between law and equity since there
is neither separate equity law nor separate equity courts in India. But the principles of equity
have found expression in various statutory enactments in India. In other words, where there is no
specific law or usage on a subject, the case shall be decided by applying the principle of 'justice,
equity and goodconscience' which implies application of English law, so far as it is applicable to
Indian conditions and circumstances.

Page 117 of 208

The Privy Council, in Chatra Kumari Devi v. Mohan Bikram observed that the Indian law does
not recognise legal and equitable estates. Therefore, there can be only one owner and where the
property is vested in a trustee, the owner must be trustee.

9. Vested and Contingent:

A vested right accrues when all the facts have occurred which must by law occur in order that a
person in question would have the right. In case of contingent right, only some of the events
necessary to vest the right in the contingent owner have happened.

A vested right creates an immediate interest. It is transferable and heritable. A contingent right
does not create an immediate interest and it can be defeated when the required facts have not
occurred.

Paton has commented that when all the investitive facts which ,are necessary to create the right
have occurred, the right is vested; when part of the investitive facts have occurred, the right is
contingent until the happening of all the facts on which the title depends24.

The distinction between vested and contingent rights may be illustrated thus- If a transfer of
certain property is acquired by a valid deed of transfer, the transferee acquires vested right in the
property. However, if a property is transferred to a person upon a condition that he shall be
entitled to possession thereof when he attains the age of 21, the right so acquired is a contingent
right.

A right to share of an unborn child in a partition suit is a contingent right which shall covert into
a vested right on his being born alive.

10. Public and Private Right:

A right vested in the State is called a public right. The State enforces such right as a
representative of the subjects in public interest. A public right is possessed by every member of
the public. A private right, on the other hand, is concerned with only private individuals, that is,
both the parties connected with it are private persons.

Page 118 of 208

As a corollary of public and private rights, there are public and private wrongs. The former are a
breach and violation of public rights and duties which affect the community as a whole, namely,
the State. They are called 'crimes'. The private wrongs are an infringement of private of civil
rights belonging to individuals. They are called civil injuries or torts.

Salmond, however, pointed out that all public wrongs are not crime e.g., the breach of a public
trust is a public wrong but it is redressible like a civil injury or a private wrong.

Analysis of Fundamental Rights:

Article 14: The state shall not deny to any person equality before law or the equalprotection of
laws within the territory of India.

State shall not- Negative duty

CLAIM (X) (any person) (+) LIBERTY(state) (-)

DUTY(Y) (state) (+) NO-CLAIM (any person) (-)

Reasonable classification: Though state is imposed with negative duty not to denyto any person
equality before law or the equal protection of laws but certain times, the state can deny on the
basis of reasonable classification. Certain times, state is conferred with this power.

POWER (STATE)(+) LIBERTY(PERSONS) (-)

LABILITY (PERSONS) (+) DISABILITY (STATE) (-)

Article 15 (3): Nothing in this article shall prevent the state from making anyspecial provision
for women and children.

Page 119 of 208

 POWER (STATE)(+) LIBERTY(WOMEN) (-)

LABILITY (WOMEN) (+) DISABILITY (STATE) (-)

But, this power to make special provision for women and children is coupled with liberty.
State is not under any duty to make special provision for women and children. State may
or may not be.

CLAIM (X) (WOMEN) (+) LIBERTY(STATE) (-)

DUTY(Y) (STATE) (+) NO CLAIM

(WOMEN AND
CHILDREN) (-)

But when this power coupled with liberty is used by the state it gives a rise to claim –duty
relationship. If special provisions enacted, women and children have claim on that special
laws.

CLAIM (X) (WOMEN) (+) LIBERTY(STATE) (-)

WOMEN
AND
DUTY(Y) (STATE) (+) NO CLAIM (-)
CHILDRE
N

Page 120 of 208

Similar analysis will be for Articles 15(4), 15(5), 16(4).

Concept of ‘Subjection’:

Subjection is a stage prior to liability. Subjection depends upon the happening of certain events.
If certain conditions get fulfill then only subjection comes into effect.

Example: Suppose, there is a conditional agreement between A and B. A promises B to pay Rs.
100 if there is a snow fall in Shimla. Snow fall takes place. Just due to falling of snow, A does
not alter the legal condition of B. It means due to falling of snow has no power or B is under no
liability in the Hohfeldian‟s table. It does not mean, no liability arises. There is some different
type of liability that is „Subjection‟. It means, after snow fall, A and B comes under Subjection.
When B approaches A for Rs. 100 than B comes under the liability because he is ready to get his
legal status altered by receiving Rs 100. A has power to alter his legal condition by fulfilling the
condition. Firstly, they come under subjection, after that power-liability relation arises. If A
refuses to pay him B has a claim and correspondingly A is under a duty to give Rs. 100, after that
power – liability relation arises. If A refuses to pay Rs. 100 to B than B has a claim and
correspondingly A is under duty to give Rs. 100.

Power denotes ability in a person to alter the legal condition of the other person for the better or
worse. When legal status is altered by volition act, it is power. When legal status is altered by
non-volition act, it is subjection. Example: Making a will (volition act), earthquake (non-volition
act). It also alters the legal condition of a person by destroying the property.

In generic sense, a legal right may be defined as any advantage or benefit conferred upon a
person by a rule of law. Legal rights & Duties are those rights & duties which are recognized and
protected by law. Legal Right in stricto senso or Claim means that there is a corresponding duty
and are defined as interests which the law protects by imposing corresponding duties on others.
Legal rights in wider sense not necessarily have the corresponding duty. The „right‟ in wider
sense has been identified with powers, privilege and immunities. Right in wider sense includes

~ 121 ~
four different concepts i.e. Claim, Liberty, Power and Immunity. Out of these four concepts, only
claim is rights strict senso whereas others do not qualify to be right in strict sense.

The study of concept of right is very essential part of the study of Jurisprudence as it helps the
law students, lawyers and even judges in understanding the true nature of the various rights
provided by the legal system. Various rights can have different nature. Some rights can be claims
and thus corresponding duties will be imposed on some other persons whereas certain rights can
be in the nature of liberty which will be the advantages which accrues to someone due to lack of
duty on himself. There are certain rights in the nature of power also, which provide the ability to
the person to change the legal condition of others whereas certain rightsare in the nature of
immunity which takes the power of other to change one‟s legal condition. Understanding this
distinction between four different terms used for the rights in wider senses and their distinction
from claims, i.e. rights strict senso, will help us to appreciate the importance and impact of the
rights conferred by the legal system. Placing a right on Hohfeld‟s table will clear all the doubts
about that right. We have already discussed the examples of several fundamental rights and their
respective position in Hohfeld‟s table.

Also, the study of right is incomplete without the discussion of wrong and duty and thus in th
beginning itself, we have discussed these two concepts and understanding of the same is very
essential for the appreciation of the concept of right. One should also note the different kinds of
rights and the essential differences between them and not use them interchangeably and thus we
have discussed the same in length.

Personality

In an ordinary meaning any living human being either male or female is person. In old Roman
law slaves were not supposed to be person because they were not possessed rights.
In legal term a being who is capable to possess rights and obligation and liabilities is person. All
human being are person. Any being whom law regards as capable of rights and duties.

Kinds of persons:

~ 122 ~
There are two kinds of person in law

1. Natural persons, and

2. Legal person

Natural persons:

All the human beings are natural persons. The entire male and female are persons. All the living
beings which are recognized as person by state, they are persons in law and persons in fact.

Legal persons:

Legal persons are created artificially and law regards them as legal person. They are persons only
in the eyes of law. They are also created by legal fiction so called as fictitious also. They are also
called juridical, conventional, imaginary, and they have rights and obligations as natural person.
They can sue and be sued.

Animals:

They are no persons because they do not possess rights and obligations. Some people say that
they are persons because law prohibits cruelty to them. They should be treated sympathetically
and kindly. But this is our cultural heritage and the duty of society and not the duty of animals.
Rights always correlate with duties. Since they do not have any duty so no rights and are not
persons although in ancient Roman law a rooster was prosecuted and punished but in modern
law master of animals can be sued and punished and not the animals itself.

Dead human beings:

They cease their rights and obligation at the moment they go away from this world and their
connection is cut down. They are immune from duties and not subject of rights. Law recognize
the compliance of will, burial ceremony, no defamation, no desecration of graves, but despite of
this fact they are not persons and these duties lie to their legal heirs or living society members.

Statues of unborn babies:

~ 123 ~
In civil law they can sue after they are born through their next friends or at attaining the age of
majority. A child in womb has certain rights and inherits property. These all things are subject to
his living birth.

Following are important points:

i. He can claim damages after birth, for the injuries he received before birth.
ii. He can claim compensation for the death of his father or mother in fatal accidents.
iii. He inherits even his father is died before his birth. He is natural person even his birth is
only for a moment.
iv. A woman cannot be punished after conviction if she is pregnant, till birth of baby.

Kinds of legal persons

Thereare three kinds of legal person:

1. Institutions are not personified or group of persons but institutions itself are legal
persons, such as, mosque, library, hospital, etc.
2. CorporationsCorporations are a group or series of persons and natural persons are its
members.
3. Funds or estatesFunds or estates are used for specific purpose. Property or fund of
deceased person for trust or charity is kind of legal person.

Kinds of Corporation:

Corporation aggregate:

Corporation aggregate is a group or collection of persons who become joint to accomplish a task.
Even all members of this corporation die, it will remain live and continue until death by law.
Common example of this corporation is Municipal Corporation or registered company.

Corporation Sole:

~ 124 ~
Corporation sole is series of successive persons or individuals. It consists of only one person at a
time like king, postmaster general, Assistant Commissioner, or Prime Minister. When a person
dies, second one comes, fills in vacancy and performs functions. After death of office holder, for
the time being, office becomes dormant or inactive or goes in sleeping position and as well as
other person fills in the position, it become active.

Natural Persons are all human beings who are capable of rights and duties in law, i.e. who have a
status. Legal persons are those to whom law is recognised as a person. It is either a thing or a
mass of property or group of human beings to which law attributes personality the law confers a
legal status and who thus in the eye of law possess rights and duties as a natural person. Person is
of two types :- 1. Natural Person II. Legal Person

According to Gray, “A person is an entity to which rights and duties may attributed.”
According to Salmond, “ person is, any being to whom law regards a capable of rights
and duties.”
According to Paton, “Legal personality is a medium through which some such units are
created in whom rights can be vested.”
In the development of society, law developed and with the development of law the
concept of legal personality come into existence. In the ancient times there was no
concept of legal personality but as the society developed the person was recognised as the
representative of the State and a separate personality was given to him. In the due course
of time corporation and companies came into existence such companies and corporate
were given the separate personality so in this way these bodies are now called as legal
persons.
i) Natural Persons: All human beings are natural persons but in ancient society the
slaves were not recognised as natural persons. Similarly outlaid persons, unsound
persons were not natural persons. In Hindu Law, Manu has mentioned some persons
who were not recognised as natural persons i.e. Born child, deaf persons, sanyasi and
those who are living dead.

~ 125 ~
ii) Unborn person: Unborn person is not a natural person because he is not in existence,
but a child in the womb is natural person because he bears the rights and duties under
law. Person in the womb can represent the position after birth. In IPC the child in the
womb is considered as a natural person as soon as any of his organ will come out
from the womb.If the pregnant lady gets the punishment of death sentence. She will
be hanged only after delivery.
iii) Animals: In ancient time the animals were legal persons but in modern time animals
are not the legal persons but in law we find come cases in which some animals have
some rights and duties. Today also the protection of animals some laws have been
made which give rights to the animals. These laws prohibit people to kill them. In this
theory the personality has also been confirmed.
iv) Dead Person: In law dead person has no existence as the dead person has no
personality. But in certain cases they are considered as person in law. First if any
person defames the dead person and such defamation lowers the reputation of the
family members of the dead person, then a legal action be taken against the
wrongdoer who defamed the dead person. Secondly if any person defames the dead
body of deceased person then such person is liable for damages under law.
v) Legal Persons: Legal person are artificial or imaginary beings to whom law attributes
personality by way of fiction, i.e. law gives them rights and duties like of natural
persons, e.g. King of England has two personalities- first a human being second as
head of state, being head of state he is known as a legal person. Similarly he President
of India and the Governors of the states are legal persons.
vi) Corporate Personality: Main form of legal personality is the corporate personality. It
is of two kinds:
Corporate Sole: means a single body representing any state or any other object. It is
called series of the successive persons. The King of England or the President of India
is the corporate sole. They represent only one man in successive period. The post of
corporate sole remains always alive while the human beings who sit on the post may
die.

~ 126 ~
 Corporate Aggregate: When law confers single personality to a group of person then
it is called corporate aggregate e.g. companies are registered according to law of
societies or according to law of land. These companies or corporations etc.,are legal
persons.

In the ancient time the Karta represented the whole Hindu family who was considered as legal
person. It is same as in Roman Society. It is adopted in the shape of Indian companies Act 1956.
The advantages of the corporate personality because they represent an association of persons as a
single person which is helpful in business.

Property
Property has a very wider meaning in its real sense. It not only includes money and other
tangible things of value, but also includes any intangible right considered as a source or element
of income or wealth. The right and interest which a man has in lands and chattels to the
exclusion of others. It is the right to enjoy and to dispose of certain things in the most absolute
manner as he pleases, provided he makes no use of them prohibited by law.

The sea, the air, and the like, cannot be appropriated; every one may enjoy them, but no one has
any exclusive right in them. When things are fully our own, or when all others are excluded from
meddling with them, or from interfering about them, it is plain that no person besides the
proprietor, who has this exclusive right, can have any claim either to use them, or to hinder him
from disposing of them as he pleases; so that property, considered as an exclusive right to things,
contains not only a right to use those things, but a right to dispose of them, either by exchanging
them for other things, or by giving them away to any other person, without any consideration, or
even throwing them away.

Basically Property is divided into real property, and personal property. Property is also divided,
into absolute and qualified, when it consists of goods and chattels.

~ 127 ~
Absolute property is that which is our own, without any qualification whatever; as when a man is
the owner of a watch, a book, or other inanimate thing: or of a horse, a sheep, or other animal,
which never had its natural liberty in a wild state.

Qualified property consists in the right which men have over wild animals which they have
reduced to their own possession, and which are kept subject to their power; as a deer, a buffalo,
and the like, which are his own while he has possession of them, but as soon as his possession is
lost, his property is gone, unless the animals, go animo revertendi.

Property is again divided into corporeal and incorporeal. The former comprehends such property
as is perceptible to the senses, as lands, houses, goods, merchandise and the like; the latter
consists in legal rights, as chooses in action, easements, and the like.

It is proper to observe that in some cases, the moment that the owner loses his possession, he also
loses his property or right in the thing: animals ferae naturae, as mentioned above, belong to the
owner only while he retains the possession of them. But, in general,' the loss of possession does
not impair the right of property, for the owner may recover it within a certain time allowed by
law.

Meaning and Definition of Property:

Meaning of Property:

In general sense, property is any physical or virtual entity that is owned by an individual or
jointly by a group of individuals. An owner of the property has the right. Human life is not
possible without property. It has economic, socio-political, sometimes religious and legal
implications. It is the legal domain, which institutes the idea of ownership. The basic postulate of
the idea is the exclusive control of an individual over some ‘thing’. Here the most important
aspect of the concept of ownership and property is the word ‘thing’, on which a person has
control for use. To consume, sell, rent, mortgage, transfer and exchange his property. Property is
any physical or intangible entity that is owned by a person or jointly by a group of people.
Depending on the nature of the property, an owner of property has the right to consume, sell,

~ 128 ~
rent, mortgage, transfer, exchange or destroy their property, and/or to exclude others from doing
these things.

There are some Traditional principles related to property rights which includes include:

1. Control over the use of the property.

2. Right to take any benefit from the property.
3. Right to transfer or sell the property.
4. Right to exclude others from the property.

Definition of Property:

There are different definitions are given in different act as per there uses and needs. But in the
most important act which exclusively talks about the property and rights related to property
transfer of property act 1882 has no definite definition of the term property. But it is defined in
some other act as per their use and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:

“Property” means property of any kind, whether movable or immovable, tangible or intangible,
and includes any right or interest in such property.

Section 2(11) of the Sale of Good Act, 1930 defines property as:

“Property” means the general property in goods, and not merely a special property.

Theories behind Concept of Property:-

There are many theories which have been evolved for the purpose of understanding the concept
of property properly.

Those theories are as follows:

i. Historical Theory of Property.

ii. Labour Theory (Spencer).

~ 129 ~
 iii. Psychological Theory (Bentham).
iv. Functional Theory (Jenks, Laski).
v. Philosophical Theories:
a) Property as a means to Ethnical Ends, and
b) Property as an End in itself.

Historical Theory of Property:

According to the Historical theory, the concept of private property had grown out of collective
group or joint property. In the words of Henry Maine, “Private property was chiefly formed by
the gradual disentanglement of the separate rights of individual from the blended rights of the
community.

Earlier property did not belong to individuals, not even to isolated families, but the larger
societies composed on patriarchal mode. Later with the disintegration of family- individual rights
came into being.

Roscoe Pound also pointed out that the earliest form of property was group property. It was later
on that families were partitioned and individual property came into being.

Labour Theory (Spencer):

The theory is also known as ‘positive theory’. This theory insists on the fact that labour of the
individual is a foundation of property. This theory says that, a thing is the property of a person,
who produces it or brings it into existence. The main supporter of this theory is Spencer, who
developed it on the principle of equal freedom. He says that property is the result of individual
labour. Therefore, no person has a moral right to property which he has not acquired by his
personal effort.

Psychological Theory (Bentham):

According to this theory, property came into existence on account of acquisitive instinct of man.
Every individual desires to own things and that brings into being property.

~ 130 ~
According to Bentham, Property is altogether a conception of mind. It is nothing more than an
expectation to derive certain advantages from the object according to one’s capacity.Roscoe
Pound also supports Bentham and observed that the sole basis of conception of property is the
acquisitive instinct of individual which motivates him to assert his claim over objects in his
possession and control.

Functional Theory (Jenks, Laski):

The theory is sometimes also known as ‘sociological theory of property’. It implies that the
concept of property should not only be confined to private rights but it should be considered as a
social institution securing maximum interests of society. Property is situated in the society, has to
be used in the society.

According to Jenks, no one can be allowed an unrestricted use of his property, to the detriment to
others. He said that the use of property should conform to the rules of reason and welfare of the
community.

According to Laski, Property is a social fact like any other, and it is the character of social facts
to alter. Property has further assumed varied aspects and is capable to further change with the
changing norms of society.

Property is the creation of the State

The origin of property is to be traced back to the origin of law and the state. Jenks observed that
property and law were born together and would die together. It means that property came into
existence when the state framed laws. Property was nowhere before law.

According to Rousseau, “It was to convert possession into property and usurpation into a right
that law and state were founded”.

The first who enclosed a piece of land and said- ‘this is mine’- he was the founder of real
society.

~ 131 ~
He insisted on the fact that property is nothing but a systematic expression of degrees and forms
of control, use and enjoyment of things by persons that are recognized and protected by law.
Thus the property was the creation of the state.

Philosophical Theories:

a) Property as a means to Ethnical Ends:

In the opinion of Aristotle, Hegel and Green, Property has never been treated as an end, but
always as a means to some other end. According to Aristotle, it may be a means to the end of
good life of the citizens, further in the opinion of Hegel and Green, it may be a means to the
fulfillment of the will without which individuals are not full human. According to Rousseau,
Jefferson, Friedman, it may be a means as a pre-requisite of individual freedom seen as a human
essence.

Similarly the outstanding critics of property like Winstanley, Marx have denounced it as
destructive of human essence, a negative means in relation an ontological end.

In all the above cases, property is taken as a means not as an end.

b) Property as an End in itself:

The supporters of liberal Utilitarian model, from Locke to Bentham, recognize property as an
end. It is maximization of utilities. According to Bentham, the command of utilities is measured
by the material wealth. The maximization of material wealth is indistinguishable from the ethical
end; property is virtually an end in itself. In the words of Locke, the unlimited accumulation is a
natural right of the individual that is an end in itself. Aristotle and Aquinas have considered,
‘’property as a means, concluded for a limited property right. Hegel and Green, treats property,
as a means, concluded for an unlimited right’. The supporters of utilitarian tradition treat,
accumulation of property, as an end, always meant a right of unlimited accumulation.

Later the concept changed and the utilitarian Bentham held that the ultimate end to which all
social arrangements should be directed was the maximization of the aggregate utility (Pleasure

~ 132 ~
minus pain) of the members of the society. While listing out the kinds of pleasures, including
non material one, he held that wealth, the possession of material goods was so essential to the
attainment of all other pleasures that it could be taken as the measure of pleasure or utility as
such.

Kinds of Property:

Broadly Property is divided into three kinds those are as follow:

Movable and Immovable property:

Movable property:

The definition of movable property is given differently in many acts. Some of the definitions are
as follows:

Section 3(36) of the General Clauses Act defines movable property as:

'Movable property shall mean property of every description, except immovable property."

Section 2(9) of the Registration Act, 1908 defines property as:

'Moveable property' includes standing timber, growing crops and grass, fruit upon and
juice in trees, and property of every other description, except immovable property."

Section 22 of IPC defines property as:

The words “moveable property” is intended to include corporeal property of every

description, except land and things attached to the earth or permanently fastened to
anything, which is attached to the earth.

Things attached to the land may become moveable property by severance from the earth.for
example Cart–loaded of earth, or stones quarried and carried away from the land become
movable property.

Immovable Property:

~ 133 ~
The Term "Immovable Property" occurs in various Central Acts. However none of those Acts
conclusively define this term. The most important act which deals with immovable property is
the Transfer of Property Act (T.P.Act). Even in the T.P.Act this term is defined in exclusive
terminology.

According to Section 3 of that Act, "Immovable Property" does not include standing timber,
growing crops or grass. Thus, the term is defined in the Act by excluding certain things.
"Buildings" constitute immovable property and machinery, if embedded in the building for the
beneficial use thereof, must be deemed to be a part of the building and the land on which the
building is situated.

As per Section 3(26) of the General Clauses Act 1897, "immovable property" "shall include land,
benefits to arise out of land and things attached to the earth, or permanently fastened to anything
attached to the earth". This definition of immovable property is also not exhaustive.

Section 2(6) of The Registration Act,1908 defines "Immovable Property" as under:

"Immovable Property includes land, building, hereditary allowances, rights to ways,

lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the
earth or permanently fastened to anything which is attached to the earth but not standing
timber, growing crops nor grass".

The definition of the term "Immovable Property" under the Registration Act 1908, which extends
to the whole of India, except the State of Jammu and Kashmir, is comprehensive. The above
definition implies that building is included in the definition of immovable property.

The following have been held as immovable property.

A right to collect rent, life interest in the income of the immovable property, right of way, a
ferry, fishery, a lease of land.

The term "Immovable Property" is defined in other Acts for the purpose of those Acts. As per
Section 269UA(d) of the Income Tax Act, 1961, Immovable Property is defined as under :

~ 134 ~
 Any land or any building or part of a building, and includes, where any land or any
building or part of a building is to be transferred together with any machinery, plant,
furniture, fittings or other things, such machinery, plant, furniture, fittings and other
things also.

Any rights in or with respect to any land or any building or part of building (whether or
not including any machinery, plant, furniture, fittings or other things therein) which has
been constructed or which is to be constructed, accruing or arising from any transaction
(whether by way of becoming a member of, or acquiring shares in, a co-operative society,
or other association of persons or by way of any agreement or any arrangement of
whatever nature, not being a transaction by way of sale, exchange or lease of such land,
building or part of a building.

Tangible and Intangible Property:

Tangible Property:

Tangible property refers to any type of property that can generally be moved (i.e., it is not
attached to real property or land), touched or felt. These generally include items such as
furniture, clothing, jewellery, art, writings, or household goods.

Intangible Property:

Intangible property refers to personal property that cannot actually be moved, touched or felt, but
instead represents something of value such as negotiable instruments, securities, service
(economics), and intangible assets including chose in action.

Intellectual Property:

Intellectual property is a term referring to a number of distinct types of creations of the mind for
which property rights are recognized—and the corresponding fields of law.

Property does not just comprise of tangible things like houses, cars, furniture, currency,
investments etc and such assets are not the only kind that can be protected by law. There are

~ 135 ~
many other forms of intangible property known as intellectual property that have been
recognized under the law and granted protection against infringement.

Under intellectual property law, owners are granted certain exclusive rights to a variety of
intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and
words, phrases, symbols, and designs. Patents, trademarks and copyrights, designs are the four
main categories of intellectual property.

Patents

Patents are used to protect new product, process, apparatus, and uses providing the invention is
not obvious in light of what has been done before, is not in the public domain, and has not been
disclosed anywhere in the world at the time of the application. The invention must have a
practical purpose. Patents are registrable nationally; the patent granted by European Patent
Office is a “bundle” of national patents. No EU-wide single patent system exists to date,
although the Community Patent is in the final stages of enactment. Registration provides a
patentee the right to prevent anyone making, using, selling, or importing the invention for 20
years. Patents are enforced by court proceedings. In addition, the Regulation on Supplementary
Protection Certificates (SPCs), grants “patent extensions” of up to 5 years to pharmaceutical and
plant products, providing as much as 25 years of patent life for originator medicines.

Trade Marks

A symbol (logo, words, shapes, a celebrity name, jingles) used to provide a product or service
with a recognisable identity to distinguish it from competing products. Trademarks protect the
distinctive components which make up the marketing identity of a brand, including
pharmaceuticals. They can be registered nationally or internationally, enabling the use of the
symbol ®. Trade mark rights are enforced by court proceedings in which injunctions and/or
damages are available. In counterfeiting cases, authorities such as Customs, the police, or
consumer protection can assist. An unregistered trade mark is followed by the letters ™. This is

~ 136 ~
enforced in court if a competitor uses the same or similar name to trade in the same or a similar
field.

Copyright

Copyright is used to protect original creative works, published editions, sound recordings, films
and broadcasts. It exists independently of the recording medium, so buying a copy does not
confer the right to copy. Limited copying (photocopying, scanning, downloading) without
permission is possible, e.g. for research. Publication of excerpts or quotes needs
acknowledgement. An idea cannot be copyrighted, just the expression of it. Nor does copyright
exist for a title, slogan or phrase, although these may be registered as a trade
mark. Copyright applies to the Internet with web pages protected by many different copyrights,
so that permission should be asked to copy or print a page, or insert a hyperlink to it. Material
cannot be posted on a Web site (Intranet included) without permission from the copyright holder.

Copyright is not registrable because it arises automatically on creation. Copyright is protected in

the EU for 70 years after the author’s death for creative works, 50 years for broadcasts, etc and
25 years for published editions. Use of © is not required in most of Europe. Copyright is
enforced by court proceedings.

Design Registration

Design registrations are used to protect products distinguished by their novel shape or pattern.
They are available for one-off items. The design itself must be new, although a 1 year grace
period is allowed for test-marketing. Registration is not possible where the new form is dictated
by function. The design is registrable either nationally or under an EU-wide single right. It can
also be protected by copyright.

The existence of concept of property is from the ancient period. This concept has a very broad
history. There are many philosophies laid down by many thinkers like Bentham, Laski. These
philosophies are very helpful in understanding the concept of property. The main finding was
that the term property is defined in different ways in each act as to its use. As in Sale of Goods

~ 137 ~
act 1930 it is defined differently than in Benami Transactions (Prohibition) Act, 1988. In transfer
of property act which is most important act which deals with property does not have definition of
the term property. There are many kinds of property as to it uses.

In today’s era, not only the things which can be seen or touched but also the things which cannot
be touched or seen come in the purview of property. Such as idea innovation, composition etc.
These properties are known as intellectual property.

Ownership and Possession

Ownership is linked with possession. Possession is the first stage of ownership. It means for
ownership possession is necessary. Possession and ownership both are two sides of the same
coin and one cannot exist without the other.

Ownership gives the full right over the thing. Ownership is ultimate and final right for disposing
the property. It means to transfer that property in any way. Ownership is a relation ship between
the person and the thing. For ownership there must be a thing and the owner of thing. The
concept of ownership was absent in the ancient society. There was also no concept of possession
too. Slowly and slowly as the society developed the concept of possession also developed. The
idea of ownership came into existence. So this way after the progress of the concept of
ownership the person became the full owner of his property.

As evident from history that the Roman Law was the first law in the world. It is considered the
ancient law. All concepts of law begin from the period of Roman society. Under the Roman
Law the concept of ownership is defined in the form of dominion that means to have the right
control of a thing. The concept of ownership developed in the form of a right over the
thing. Dominion is distinguished from possession. Possession means to have possession over a
thing but dominos means to have a right over the thing.

Hindu Law: Hindu Law is also considered as the most ancient law in the world. In Hindu law
the concept of ownership also has been discussed. In Hindu Law ownership is said a ,
“According to Hindu Law ownership means a relationship between person and a thing. Person is

~ 138 ~
called owner and a thing is called property. Means a property which is in the control of a person
is his property.

Views of Modern & Western Jurists

The western jurists like Austin, Holland and Salmond defined the concept of ownership.

Austin: According to him ownership is the relationship which exists in between the person and
the thing.” This definition resembles with the definition under Hindu Law. Austin says that in
ownership a person has the following relations with the thing.

1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for
industry, residence but there is a restriction that one cannot use one’s property in such a way
which destructive in the living of others.

2.Un-restricted power of dispose:- Means to transfer that thing or property according to his
choice. He can sale or to mortgage even to give on lease or gift to anybody. But under art.19(2)
of the Constitution reasonable restrictions can be imposed by the Govt., in the interest of public
policies.

3.Un-limited duration of time :- means the right of transfer of his property will remain always in
the name of owner. After his death it will go to his heirs so there is no time limits.

4.Domination :- It means to have control over the thing. For this purpose both elements of
possession corpus and animus should be there. If the conditions are there between person and
the thing and then the person is owner of that thing.

According to Holland: He defined the ownership as a plenary control of a person over a thing.
The definition also contains the following conditions:

1. Possession,
2. Enjoyment, and
3. Disposal.

~ 139 ~
Salmond defines ownership as a relationship between person and the right. Right means to have
a thing under possession. Thing always represents physical objects. But right always represents a
thing which is not in physical existence like copy right and allowances are always thing which
are called property. And which are not in physical existence.

Salmond has included all those right which are property in the concept of ownership. In view of
the above it is learnt that Austin and Holland definitions are not complete. But salmond is
completely perfect in his definition.

Kinds of Ownership

There are various kinds of ownership which are as under:-

1. Corporal and Incorporeal Ownership:Corporeal and incorporeal ownership also called

material and immaterial ownership. Corporeal ownership is the ownership of a material
object and incorporeal ownership is the ownership of a right. Ownership of a house, a
table or a machine is corporeal ownership. Ownership of copyright a patent or a trade
mark is incorporeal ownership.
2. Sole and Co-Ownership:The general principal of ownership is that vested in one person
only. But some times it vested in many persons in other words two or more person have
the right of ownership. If only one person have right of ownership that known as sole
ownership and where two or more persons have the right of ownership then know as co-
ownership.
3. Vested and Contingent Ownership: Ownership is either vested or contingent it is vested
ownership when the title of the owner is already perfect. It is contingent ownership when
the title of the ownership is yet imperfect.
4. Absolute and Limited Ownership: means owner is one in whom are vested all the rights
over a thing to the exclusion of all or when a person has an absolute right over his
property known as absolute ownership.

~ 140 ~
When there are limitations on the user duration or disposal of rights of ownership the ownership
is limited ownership.

5. Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of
common law. Equitable ownership is that which proceeds from the rules of equity. Legal right
may be enforced in rem but equitable rights are enforced in personam.

The ownership is a relationship between person and the right. These rights include the right of
possession enjoyment and disposal of the property. If all conditions are there then it is called
Ownership.

Difference between Possession & Ownership (in short):

Possession
1. Possession is a primary stage of ownership
which is in fact.
2. Possession does not give title in the
property defacto exercise of a claims
3. Possession is a fact.
4. Possession tends to become ownership.
5. Possession dominion corpus and animus
are necessary.
6. Transfer of possession is comparatively
easier.
7. Possession is nine points of law.
Ownership
1. Ownership is in right.
2. While in ownership it gives title in the
property dejure recognisation
3. Ownership is a right and superior to
possession.
4. Ownership tends to realize itself in to
possession.
5. Ownership they are not necessary because
law gives full rights.
6. Ownership most of the cases involves a
technical process i.e., conveyance deed
etc.
7. Ownership always tries to realize itself in
possession i.e., complete thing.

Concept and Functions of Ownership

~ 141 ~
The idea and concept of ownership is developed by slow degrees with the growth of civilization.
In primitive societies the only concept known to human mind was that of possession. It was
much later that the concept of ownership adopted. So long as the people were wandering from
place to place and had no settled place of residence, they had no sense of ownership. The idea
began to grow when they started planting trees, cultivating lands and building their homes. The
transition from a pastoral to an agricultural economy helped the development of the idea and
concept of the ownership.

Thus, ownership denotes the relation between a person and an objective forming the subject
matter of his/her ownership. The normal case of ownership can be expected to exhibit the
incidents as follows: First, the owner will have a right to possess the thing which s/he owns.
Secondly, the owner normally has the right to use and enjoy the thing owned. Thirdly, the owner
has the right to consume, destroy or alienate the thing. Fourthly, ownership has the
characteristics of being indeterminate in duration. Fifthly, ownership has a residuary character.

Meaning and Definition of Ownership:

The literal meaning of the term ‘own’ is to have or hold a thing. The one who holds a thing as his
own is said to be the owner and has right of ownership ever it. Thus in the non-legal sense
ownership may be defined as the right of exclusive control over and disposal of a thing at will.

In the legal sense the term ownership carries the meaning of right over a thing to the exclusion of
all other persons. This implies non-interference by others in the exercise of this right and must be
distinguished from mere holding of a thing in one’s possession.

Normally ownership implies,

i. the right to possess,

ii. the right to use,
iii. the right to manage,
iv. the right to capital and
v. the right to income.

~ 142 ~
The concept of the ownership is one of the fundamental juristic concept common to all system of
law. Different writers have defined ownership in different ways.

Austin defined ownership as ‘a right indefinite in point of user, unrestricted in point of

disposition and unlimited in point of duration.’

Austin’s definition thus implies thee attributes viz.,

a) indefinite user,

b) unrestricted disposition and

c) unlimited duration.

Holland‘s definition: Austin’s definition of ownership has been followed by Holland. He defines
ownership as plenary control over an object. According to him an owner has thee rights on the
subject owned:-

a) Possession

b) Enjoyment

c) Disposition

According to Salmond, ‘Ownership in most comprehensive significance denotes the relation

between a person and any right that is vested in him.’ That, which a man owns, according to him,
is in all cases a right. Ownership in this wider sense extends to all classes of rights, whether
proprietary or personal, in rem or in personam, in re-propria or in re-aliena. He adds that it
applies not only to rights in the strict sense but also to liberties, powers and immunities.

Thus, according to Salmond ownership vests in the owner a complex of rights which s/he
exercises to the exclusion of all others. For Salmond what constitutes ownership a bundle of
rights which in here in an individual. Salmond’s definition thus points out two attributes of
ownership:-

a) Ownership is a relation between a person and rights that is vested in him;

~ 143 ~
 b) Ownership is incorporeal (immaterial, having no material body or form).

For Salmon a man may own a copyright or a right of way in the same way as s/he owns a piece
of land because in all the cases s/he owns only a right and not a thing.

Hohfield expresses a similar view (like that of Salmond) when he says ownership is not a right
but a bundle of rights, privileges, powers etc.

Duguit has defined, ‘Ownership is a relation between a person and a thing. On account of this
relation the person has the power of disposal, use and enjoyment of the thing’.

a. Ownership is a right which comprises of powers, claims, privileges, etc.

b. Ownership is in respect of a thing which may be corporeal or incorporeal.
c. The rights relating to or in connection with ownership are subject to state
regulation i.e., can be limited or restricted by law.
d. Owner is he who is entitled to the residue of rights with respect to an object left
after the limitation resulting from the voluntary acts of the owner (mortgage, lease
or hire) or those imposed by law are exhausted,
e. Ownership does not imply or indicate absolute or unlimited rights either regarding
use, disposal or duration.

Essentials of Ownership:

i. The first essential of ownership is that it is indefinite in point of user. It is

impossible to define or sum up exhaustively the wide variety of ways in which the
thing owned may be used by the person entitled to its ownership.
ii. Another essential of ownership is that it is unrestricted in point of disposition. An
owner can effectively dispose of his property by a conveyance during his lifetime
or by will after his death.
iii. The owner has a right to possess the thing which s/he owns.
iv. The owner has the right to exhaust the thing while using it, if the nature of the
thing owned is such.

~ 144 ~
 v. Another essential of ownership is that it has a residuary character. An owner may
part with several rights in respect of the thing owned by him/her.
vi. Generally, the owner has the right to destroy or alienate the thing s/he owns.

Characteristics of Ownership:

i. Ownership is absolute or restricted. It may be limited to a lesser or greater extent, either

voluntarily or under compulsion of law.
ii. Right of ownership may also be restricted national emergency.
iii. An owner has to pay taxes to the state and exercise of his right of ownership.
iv. An owner must not exercise his right of ownership in such a way as to infringe the right
of other owners.
v. An owner has not the freedom to dispose of his property in any way he likes. S/he can not
transfer the property to defraud his creditor.
vi. Infants and lunatics are under a disability in the eye of law because they can neither
understand the true nature of their acts nor the consequences.
vii. Ownership does not generally terminate with the death of the owner. It passes to legal
heirs in case of intestacy.

The Subject-Matter of Ownership:

The prime subject matter of ownership consists of material objects such as land and chattels. But
ownership is by no means limited to things of this category. A human being’s wealth may consist
of such things as interests in the land of others, debts due to him, shares in companies, patents,
designs, trademarks, copyrights and so on. Salmond indeed took the view that the true subject
matter of ownership has to be a right in all cases.

Criticism:

Austin’s view of ownership has been criticized on various grounds;

1. It is pointed out that ownership is not a right but a bundle of rights. It is the aggregate
or sum total of the rights of user and enjoyment.

~ 145 ~
 2. Ownership is not merely a right but also a relationship between the right owned and
the person owning it.
3. The idea of the right of indefinite user is also attacked. Many limitations can be put
upon that user. The owner must use his property in such a way as not to interfere with
the rights of others.

Salmond’s view of ownership has been criticized by many writers;

1. According to Duguit, ownership is a relationship between a person and a thing over

which he is permitted, on account of this relationship, complete disposal, use and
enjoyment. What is owned is a thing and not a right.
2. According to Cook, there are many rights which a person may possess and to use the
term ‘owner’ to express the relationship between a person and a right is to introduce
necessary confusion. Ownership is the name given to the bundle of rights.
3. According to Kocourek, ownership is a relationship of the owner and a right to a thing
which can be economically enjoyed. The right of ownership is a matter of legal
protection.

Methods of Acquiring Ownership:

A thing is capable of being owned, the methods of acquiring ownership over it will vary from
legal system to legal system. There are two modes of acquisition of ownership and those are
original and derivative. Original acquisition can be absolute: res nullius and by occupation.
Basically, one can acquire ownership in two ways:

i. by operation of law or

ii. by reason of some act or event.

As to the first, a statute might provide that all A’s property should after a certain period of time
vest in B. As to the second this may consist in the first taking or madding a thing, both being
cases of original acquisition. Thirdly, the thing may fall into man’s ownership without any

~ 146 ~
 human act, as would be the case if a piece of land were to break off from an island in a river and
attach itself to my land on the opposite bank.

8. Classification of ownership:

Ownership may be of various kinds. Broadly, it may be classified under the following heads-

i. Vested and Contingent Ownership

ii. Sole and Co-Ownership
iii. Corporeal and Incorporeal Ownership
iv. Legal and Equitable Ownership
v. Trust and Beneficial Ownership
vi. Absolute and Limited Ownership
vii. Vested and Contingent Ownership

Vested and Contingent Ownership:

Ownership is either vested or contingent. It is vested when the owner’s title already perfect, it is
contingent when his title is as yet imperfect, but is capable of becoming perfect on the fulfillment
of some condition. In the former case the ownership is absolute; in the latter it is merely
conditional. Once it is matured it automatically converts into vested type of ownership.

Sole and Co-Ownership:

Sole ownership indicates the singular control over the property. In this concept an individual
only entertains all sorts of rights of ownership over his owned property. Co-ownership is a
concept of plural or multiple owners holding right over the particular property. A single person
cannot entertain the rights of ownership in group.

Corporeal and Incorporeal Ownership:

~ 147 ~
Ownership over any material object which can be movable or immovable but tangible objects is
called corporeal ownership. Incorporeal Ownership means ownership over the immaterial things
such as right over patent, design, trademark, copyright etc.

Legal and Equitable Ownership

The distinct between legal and equitable ownership is limited in English common law only.
Legal ownership is a legally defined and protected property. Generally, ownership is understood
as a legal ownership. In other words, legal ownership is that which has its origin in the rules of
the common law.

Equitable ownership is basically carried out from the Chancery courts of UK. Equity courts
protect the rights of property. Equity law granted rights were the concept of equitable ownership.
Equity law is a concept of natural law philosophy. It does have no practicability to rest of the
world.

Trust and Beneficial Ownership

Trust ownership is also known as duplicate or dual types of ownership. It is well defined right
that one should use the right to favor other. This kind of ownerships looks like ceremonial
having no powers.

Beneficial ownership is relating to rights over the trust to use the authority in favor of the trust
itself. This type of ownership is taken as a real ownership because it is powerful and using right
to favor the trust is to benefit all trustees. Moreover user is none other than a trustee.

Absolute and Limited Ownership

Absolute ownership is a concept of right having no any conditions. Particular property is totally
under the control of owner. Limited ownership is a conditional approach of the rights over the
property. It is basically based on contract law or dependency and various defined limitations
towards the entertainment of right relating to ownership.

Functions of Ownership:

~ 148 ~
From the above mentioned definition, characteristic and classification etc.function of the
ownership is itself clear. According to Dias, the function of the ownership is as follows:

The ownership has been stated that as right in itself, distinct from its component jurally relations,
has always been usefully for identifying certain groups of interests and for distinguishing them
from others. This is because ownership of these special groups was originally an index not
merely to wealth, but to social position, and it was socially significant in other ways as well.
Possession, as has been seen, is a judicial concept and an instrument of judicial policy.

In the words of Lord Evershed ‘property like other interests has a social obligation to perform’.
In English law the various forms of land holding designated a man’s social standing, where as
chattels, being fungible, did not have this function. Ownership of land was also a means of
controlling government in so far as the qualification to vote was based upon it. Dominium in
Roman law connected sovereignty, which is essentially a social concept and something more
than just ownership, things of ownership the earliest forms of roman property, were precisely the
things that were important to a primitive agricultural community.

Distinction between Possession and Ownership:

According to Ihering, “Possession is the objective realization of ownership.” It is the external

realization of ownership. It is a valuable piece of evidence to show the existence of ownership. It
is in fact what ownership is in right. It is the de facto exercise of a claim while ownership is the
de jure recognition of that claim. Possession is the de facto counterpart of ownership. It is the
external form in which rightful claims normally manifest themselves. For example, a rented
house is actually in possession of the tenant but the ownership of it is vested in the landlord.

According to Salmond, “ownership in its widest sense implies “the relation between a person and
any right that is vested in him. Possession is in fact what ownership is in right. Bringing out
distinction between possession and ownership Salmond pointed out that a person is said to be the
owner of a thing when his claim receives the recognition and protection from the law of the state,
but possession may be exercised and realized even without such recognition or protection from

~ 149 ~
the law. Thus ownership has the guarantee of law but possession has some measure of security
and value from the facts, without any possibility of support from land.

According to Austin, ownership in its wider sense is a right “indefinite in point of user,
unrestricted in point of disposition and unlimited in point of duration”. The right of alienation of
property is a necessary incident to the right of ownership, but there are many restrictions with
regard to the alienation of property today.

According to Pollock, “Ownership may be described as the entirety of the powers of use and
disposal allowed by law. The owner of a thing is not necessarily the person who at a given time
has the whole power of use and disposal; very often, there is no such person. We must look for
the person having the residue of all such power when we have accounted for every detached and
limited portion of it, and s/he will be the owner even if the immediate power or control and user
are elsewhere”.

Possession and ownership differ in their mode of acquisition. The transfer of possession is
comparatively easier and less technical but the transfer of ownership in most cases involves a
technical process of convincing.

On the basis of above discussion, we can compare ownership and possession in this way in brief:

Ownership Possession
1. Ownership is an absolute authority over 1. Possession is relative authority holding
the property. physical control over the property.
2. Ownership is perfectly legal right. It 2. Possession is possessory right only. It
shows legal situation. shows real situation.
3. Ownership is a de jure concept. 3. Possession is a de facto concept.
4. Ownership right is wider concept. 4. Possession is a right of consumption
only.
5. Ownership holds unlimited and 5. Possession right is limited concept of
uncontrolled rights. right.
6. Transfer of ownership is not easy and it 6. Possession is comparatively easy and
needs to legal or formal procedures, practically no need to register and such
prerequisites of registration. formalities.
7. Ownership has no technical 7. Possession faces the technical obstacles
obstructions to transfer. for transfer.

~ 150 ~
 8. Ownership only does not carry practical
use in the absence of possession.
9. Ownership does not get priority if there
is an equal right over the same
property.
10. Ownership only does not carry practical
use in the absence of possession.
8. Possession is a single concept giving no
right of ownership.
9. Possession may create ground for the
ownership as well.
10. Possession is the real and basis of
priority for the situation of equal rights.

Relation between Possession and Ownership

We have already adverted to the chief differences between possession and ownership. Speaking
generally, ownership and possession have the same subject matter. Possession has been treated
as an external evidence of ownership. A person in possession of a thing may be presumed to be
the owner of it. The person in possession need not prove his ownership; instead, the burden of
disproving ownership of the possessor is on the person who disputes his ownership. A long
continuous and uninterrupted possession is an effective method of realization of ownership.

According to Salmond, the subject matter of possession and ownership is more or less the same,
a thing which may be owned, may also be possessed. Likewise, a thing which may be taken into
possession may also be owned. Salmond held that whatever may be owned may be possessed,
and whatever may be possessed may be owned. Salmond further pointed out that “the law of
prescription determines the process by which through the influence of time, possession without
title ripens into ownership and ownership without possession withers away and dies”.

According to Sethna, the relationship between ownership and possession is same as that of body
with soul. Just as existence of body is necessary for the realization of soul, likewise possession is
necessary and useful for the expression of the ownership because it (possession) is external and
formal.

Sir Henry Maine suggested that historically, the concept of possession is prior to that of
ownership. In fact, right of possession has evolved out the right of ownership.
Possession is the de facto exercise of a claim while ownership is the de jure recognition of it.
Possession is the guarantee of fact whereas ownership is the guarantee of law. A claim to
possession is maintained by one’s own self asserting will but a claim to ownership is legally

~ 151 ~
protected by the will of the State. Ihringobserved that possession is the objective realization of
ownership. Possession in fact, is what ownership is in right. The distinction between possession
and ownership on the basis of fact and right is not tenable. Fact and right are not quite separate
and independent ideas. One cannot exist without the other.

The way of ownership, philosopher Salmond, had indicated the ownership cooperates with
person and right. Austin quoted right to user of indefinite nature, Holland concerned for power to
the possession, enjoyment and ownership.

Basically, ownership functions according to its definition and characteristics. In the functionally,
it has social position and significant. It has the judicially as well as social control and policy.
Ownership of land was also means of controlling government. By the way ownership is depends
on according to the nation’s government. Although, philosopher defined its nature, definition,
acquisition, kinds and function related with possession, owner, right and so on but it has
naturally right with the nation about property, citizens and power.

At last, we can say that ownership is strictly a legal concept and possession is non-legal and pre-
legal concept, so they have basic different but closely co-related with each other.

Possession is very difficult to define in English Jurisprudence. But it very important topic.
Human life and society would become impossible without retention and consumption of material
and non-material things. Food, clothes, tools, etc. are essential items to use. We get hold over the
first to claim possession. It is not just acquisition of things but it is continuing claim for use of
them. It may be legal or illegal.

How the Possession is acquired:

Following are some points which can be referred to acquire or loss the ownership:

(i) Possession itself is evidence being owner. Pen in my hand is evidence being owner,
regardless legally or illegally.
(ii) The person in possession is presumed to be the owner. A house in my possession is
presumed my ownership along-with all the things lying in it.

~ 152 ~
 (iii)Anything can be held wrongfully or by fraud.
(iv) Long possession of twelve years confers the title in property, which may belong to others.
When a title is conferred to another even without ownership is acquisition of possession.
Possession is defined as “it is continuing exercise of a claim to the exclusive use of it.” It does
not cover incorporeal possession. Possession is different from ownership but normally
possession and ownership lie together.

How the possession is acquired: Lease, renting out, pledge, mortgage, theft, fraud, and bailment
etc. is the general mode of acquisition of possession. Possession is of two kinds, i.e., possession
in fact or de facto and possession in law or de jure. Some discordance in law and fact occurs.
Law something presumes which may not actually exist. Normally possession in law and
possession in fact exist in a person but it may vary.

Possession in fact or de facto:

It means the possession, which physically exists in term of control over it. It can be seen
landlord and tenant where tenant holds possession of house physically or de facto, but it is not
possession in law or de jure.

Possession in law or de jure:

It is the possession which, in the eyes of law, exists. It may exclude physical control over it. It
is also called constructive possession. A servant may possess car, but in the eyes of law, it is
possession of master. Possession of bailor through bailee is de jure possession on the part of
bailor.

Corporeal and Incorporeal Possession:

Corporeal possession is the possession of a material or tangible objects, thus it is continuing

exercise of a claim on the use of material or tangible object.
Incorporeal possession is the possession of a non-material or intangible object. Thus it is
continuing exercise of a claim on the use of non-material or intangible object.
There are two essential elements of possession, i.e., animus and corpus.

~ 153 ~
Animus is the intent or mental condition or activity or claim of exclusive use of the thing
possessed. Cloth at tailor’s shop is in possession of tailor but he may not intend to exclude the
owner or subject of the owner. Animus may be legal or illegal. The only test is whether the man
in possession intends to exclude others or not. General intent is enough to constitute possession.
All books in library, all fishes in net, all sheep in flock, are subject of intent whether in
knowledge or not, thus possessio completes.

Corpus is second element, which is essential and completes possession. It is objective part of
possession. Both animus and corpus are necessary for possession.
The intent to exclude to others from interfering with the object possessed must be evidenced by
physical facts. If there is no action then no intention is expressed. Pen in my pocket, ring on my
finger, or goods in my home, are corpus of my possession of each of these.

Completion of Possession:

Power of possession: It shows possession. Books or watch in my hand excludes others thus
possession is complete. Things under lock and key are also possession.

Presence of possession: A person may be feeble and unable to exclude other but his presence
may command respect. Cash in the hand of child is possession.

Secrecy: Mere knowledge that I have cash in bank, which is exclusive knowledge, is possession.
Continuing use: I use pen continuously, read book continuously, use of transport continuously,
is possession.

Customs: In some localities people are not allowed to interfere to other things even presence is
not there, like in Saudi Arabia where people leave their shops remain open and go to offer prayer
and no interference is allowed. It is possession even in absence.

Respect of rightful claim: In law-abiding societies people do not interfere in the right of other
and rightful claim generally obtain security from general acquisition.

Res nullius

~ 154 ~
Res nullius means ownerless things or objects. Terra nullius means no man land. A person, who
finds lost goods, while passing on road, e.g., a wallet, being first finder, he has good title against
the whole world except the true owner, even if it is found on another person property without
committing trespass. This is the rule. Any other person who looks at finder of lost goods cannot
demand his share from lost goods.If a customer finds a lost wallet while shopping in a store
which is not identifiable, can retain till reasonable time to wait its true owner. He is obliged to
bring this matter into the knowledge of shopkeeper and give him his own address. If true owner
did not come till reasonable time, he will hold title. There are many other things which have no
owner, i.e., gems stone, metal, gold, silver, natural resources, bird, animal, provided these things
are found in way, without committing trespass. Precious stone cannot be held from the area
specified by government. Bird or fish cannot be hunt from the area of property holder. Things
cannot be hold from others house. Bird cannot be hunt, which is prohibited.
There are three exceptions in this rule:

i. Owner of the property on which the thing is found is in possession of the thing itself as
well as property, or
ii. If the finder is servant or agent then master or principal has title, or
iii. Wrongful act does not constitute possession. Trespass is not allowed.
Natural resources in economic zone like water, sea, land etc. belong to government. If treasure
comes out from others property will also belong to government.

Kinds of Corporeal Possession:

Immediate possession means direct or proximate possession without agency and mediates
possession means in between or remote possession. It is acquired with agency.

i. A being a servant holds something for his master B. A has immediate possession while
possession of B is mediate.
ii. Where both claim possession, e.g., tenant and landlord.
iii. In case of bailment, pledge or mortgage, both have claim.

~ 155 ~
 iv. A has exclusive right of possession on his land while right of way over his land is
concurrent.

Acquisition of possession:

Possession is acquired when both the animus and corpus are acquired:

1. By taking: When someone takes anything, he has possession. It may either be rightful
or wrongful possession.
2. By delivery: The thing is acquired by delivery with consents of previous possessor.
3. Actual delivery:Actual delivery is a kind in which goods are delivered while
constructive delivery is the rental or sold goods.

As with most words in the English language, the word ‘possession’ has a variety of uses and a
variety of meanings. Reference to any reasonably comprehensive English dictionary provides
sufficient illustration. As a noun from the transitive verb to passes.’ Possession’ is given as: the
action or fact of possessing something or of being possessed. Depending on the context, the
lexicographer maybe found to give meanings such as the following: the holding of something as
one’s own: actual occupancy as distinguished from ownership; a territory subject to a sovereign
ruler or state; the fact of being possessed by a demon; the action of an idea or feeling possessing
a person; the action of keeping oneself under control- as in self-possession. The lexicographer, in
attempting to assign the meaning of the word as used in English law, may well find himself
saying something like the following: ‘The visible possibility of exercising over a thing such
control as attaches to lawful ownership: the detention or enjoyment of a thing by a person
himself or by another in his name; the relation of a person to a thing over which he may at his
pleasure exercise such control as the character of the thing permits, to the exclusion of other
persons………….. It should be clear at the outset, then, that different meanings may be ascribed
to the word ‘possession’, depending upon context and use, and that the search for one ‘proper’
meaning for the word is likely to be a fruitless one. It may be objected, however, that it is the
concept of possession in the law that is of interest here, and not the varied used to which the
word’ possession’ may be put in the English language. It may be, and has been, urged that there

~ 156 ~
is a unitary concept of possession so far as the law is concerned, and that the analysis and
explanation of that concept is the proper function of jurisprudence. It is not difficult to
demonstrate, however, that the search for a unitary concept of possession in the law is one
doomed To frustration, if it is assumed that every time the word’ possession’ is used in legal
reasoning it refers to or names that unitary concept. Further it is not difficult demonstrate that the
example of the lexicographer’s delineation of possession in the law given above is inadequate,
misleading, and that it produces confusion in legal reasoning. Before examining the use other of
the word or of the concept or concepts of possession in the law, it is proper to demonstrate that
the word and concept are important in many aspects the law as described or discovered in
textbooks, statues, or judicial pronouncements. Possession, even without ownership, may have
the utmost practical importance. Possession may create ownership, either by oeeupatio (the
taking control of a res mulli-is) or by the expiration of a period of acquisitive prescription. More
cover, possession is prima facie evidence of ownership, and he who would disturb a possessor
must show either title or a better possessory right. A chimney sweeps who finds a ring may not
be the owner of the ring, but his 1 The Shorter Oxford English Dictionary (3rd dc.) vol. Ii, 1550.
The Shorter Oxford English Dictionary. Loc. cit. possessory right allows him to recover to the
value of the stone set in the ring from a jeweler who refuses to return it after it is handed to him
for examination1 . In technical language, the ius terill cannot be pleaded against a possessor. If
Jones possesses a car and I, having no title, take it from him, it is no defence for me to prove that
Jones is not the true owner. He may be a thief, but whatever the power of the owner to recover
the car; Jone’s possessory right is superior to mine. In Roman law one who brought an action for
furtum had to show that his interest had been honestly secured2 but in English law there is no
theoretical reason why a thief should not sue a second thief who takes from him the res in
question, for even a wrongful possession is good against all but the true owner or one claiming
through him or one claiming a prior possessory itht. Some systems carry their theories so far that
in a possessory action title is irrelevant. Thus, if I, as dispossessed owner, retake a chattel, the
previous possessor may recover it from me by a possessory action- my only remedy is a ral
action based on my title. But here the law must effect a delicate compromise, which rather
confuses the theory of possession. It would be thought absurd in the English world if an owner

~ 157 ~
had no Right to retake the purse seized from him or to eject a trespasser who entered his house
during his absence. Sometimes the solution is sought in the doctrine that possession seized by
violence is not true possession, but this produces internal conflict with what is usually taken to
be the central notion of possession, however convenient the result may be in allowing the owner
to act effectively. The problem when self-help should be allowable is always a difficult one.
English law allows title to chattels to be set up as a defence in a possessory action, if I retake my
own chattel, I can defeat the previous holder’s action of trespass by proof of my title.

Unit- IV
Concept of Natural and Social Justice
“Justice is sweeter than water the thirsty (person) have”.
—Imam Ja’far al-Sadiq (AS)

Let us first understand the concept of justice(in short) that what it is actually and then after we
will discuss the concept of Natural and Social Justice. Justice is the legal or philosophical theory
by which fairness is administered. The concept of justice differs in every culture, as cultures are
usually dependent upon a shared history, mythology and/or religion. Each culture's ethics create
values which influence the notion of justice. Although there can be found some justice principles
that are one and the same in all or most of the cultures, these are insufficient to create a unitary
justice apprehension.

In English law, natural justice is a technical terminology for the rule against bias (Nemoin
propria causa judex, esse debet) and the right to a fair hearing (audi alteram partem). While the
term natural justice is often retained as a general concept, it has largely been replaced and
extended by the general "duty to act fairly".

The basis for the rule against bias is the need to maintain public confidence in the legal system.
Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult
to prove in practice while imputed bias, once shown, will result in a decision being void without
the need for any investigation into the likelihood or suspicion of bias. Cases from different
jurisdictions currently apply two tests for apparent bias: the "reasonable suspicion of bias" test

~ 158 ~
and the "real likelihood of bias" test. One view that has been taken is that the differences
between these two tests are largely semantic and that they operate similarly.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting
their rights or legitimate expectations unless they have been given prior notice of the case, a fair
opportunity to answer it, and the opportunity to present their own case. The mere fact that a
decision affects rights or interests is sufficient to subject the decision to the procedures required
by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the
European Convention on Human Rights, which is said to complement the common law rather
than replace it.

The words “natural justice” have specific meaning in the law. Natural justice comprises two
rules, the rule against bias and the rule of the right to a fair hearing. Because of the necessity of
maintaining public confidence in the legal system- which includes not only the courts but all
public decision making bodies, it is most important that people who are engaged in these
processes feel that they have had a fair hearing and that there has been no bias.

Bias can take the form of actual bias or imputed or apparent bias. Actual bias is where it can be
established that the person making a decision was prejudiced for or against a party. If the
decision maker had a monetary, proprietary or personal interest in the matter then bias may be
imputed. Apparent bias is when the conduct or behaviour of the decision maker suggests that
their decisions are not impartial.

The right to a fair hearing requires that participants in the justice system should not be penalised
by decisions that affect their rights unless they have been given;

1. prior notice of the case,

2. fair opportunity to answer the case, and
3. the opportunity to present their case properly.

Indian Constitution and Natural Justice

~ 159 ~
In The Constitution of India, nowhere the expression Natural Justice is used. However, golden
thread of natural justice sagaciously passed through the body of Indian constitution. Preamble of
the constitution includes the words, ‘Justice Social, Economic and political’ liberty of thought,
belief, worship... And equality of status and of opportunity, which not only ensures fairness in
social and economical activities of the people but also acts as shield to individuals liberty against
the arbitrary action which is the base for principles of Natural Justice.

Apart from preamble Art 14 ensures equality before law and equal protection of law to the
citizen of India. Art 14 which strike at the root of arbitrariness and Art 21 guarantees right to life
and liberty which is the fundamental provision to protect liberty and ensure life with dignity. Art
22 guarantees natural justice and provision of fair hearing to the arrested person. Directive
principles of state Policy specially Art 39-A takes care of social, economic, and politically
backward sections of people and to accomplish this object i.e. this part ensure free legal aid to
indigent or disabled persons, and Art 311 of the constitution ensures constitutional protection to
civil servants. Furthermore Art 32, 226, and 136 provides constitutional remedies in cases
violation of any of the fundamental rights including principles of natural justice. With this brief
introduction author undertakes to analyze some of the important provision containing some
elements of Principle of Natural Justice.

Constitutional Provisions relating to the ‘Principles of Natural Justice’

As we know that Article 14 guarantees equality before law and equal protection of law. It bars
discrimination and prohibits both discriminatory laws and administrative action. Art 14 is now
proving to be bulwark against any arbitrary or discriminatory state action. The horizons of
equality as embodied in Art 14 have been expanding as a result of the judicial pronouncements
and Art 14 has now come to have a highly activist magnitude. It laid down general preposition
that all persons in similar circumstance shall be treated alike both in privileges and liabilities
imposed.

Art 14 manifests in the form of following propositions:

~ 160 ~
 (i) A law conferring unguided and unrestricted power on an authority is bad for being
arbitrary and discriminatory.
(ii) Art. 14 illegalize discrimination in the actual exercise of any discretionary power.
(iii) Art. 14 strikes at arbitrariness in administrative action and ensures fairness and
equality of treatment.

In some cases, the Courts insisted, with a view to control arbitrary action on the part of the
administration, that the person adversely affected by administrative action be given the right of
being heard before the administrative body passes an order against him. It is believed that such a
procedural safeguard may minimize the chance of the Administrative authority passing an
arbitrary order. Thus, the Supreme Court has extracted from Art. 14 the principle that natural
justice is an integral part of administrative process.

Art. 14 guarantee a right of hearing to the person adversely affected by an administrative order.
In Delhi Transport Corporation v. DTC Mazdoor Union, SC held that “the audi alteram
partem rule, in essence, enforce the equality clause in Art 14 and it is applicable not only to
quasi-judicial bodies but also to administrative order adversely affecting the party in question
unless the rule has been excluded by the Act in question.” Similarly, in Maneka Gandhi v. Union
of India, SC opined that Art 14 is an authority for the proposition that the principles of natural
justice are an integral part of the guarantee of equality assured by Art. 14 an order depriving a
person of his civil right passed without affording him an opportunity of being heard suffers from
the vice of violation of natural justice.

There are several instances where Art 14 of the Constitution is invoked to protect individual
from the violation of natural justice principles, in Central Inland Water Transport Corporation
Ltd v. Briojo Nath in this case a government company made a service rule authorizing it to
terminate the service of permanent employee by merely giving him a three months’ notice or
salary in lieu of notice. The rule was declared to be invalid as being violative of Art. 14 on the
ground that it was unconstitutional. The rule in question constituted a part of the employment
contract between the corporation and its employees. The Court ruled that it would not enforce,

~ 161 ~
and would strike down, an unfair and unreasonable clause in a contract entered into between
parties who were not equal in bargaining power. This was in conformity with the mandate of the
“great equality clause in Art. 14.”

The Court emphasized that the judicial concept of Art. 14 have progressed “from a prohibition
against discriminatory class legislation to an invalidating actor for any discriminatory or
arbitrary state action.” The Court also emphasized that the rule was “both arbitrary and
unreasonable” and “as it also wholly ignored and set aside the Audi alterum partum rule”
violated Art. 14. This is of the view that “the principle of natural justice has now come to be
recognized as being a part of the constitutional guarantee contained in Art. 14.” The rule in
question was “both arbitrary and unreasonable,” and it also wholly ignored and set aside
the Audi alterm partum rule and, thus, it violated Art 14.

In Cantonment Board, Dinapore v. Taramani in this case the Commanding-in-chief of the

cantonment board cancelled the board’s resolution after giving it a hearing but not to the
respondent to whom the permission had been given. The Supreme Court ruled that
Commanding-in-chief ought to have given a hearing to the respondent as well before cancelling
the permission given by the board. The Court observed: audi alteram partum is a part of Art. 14
of the Constitution”. The real affected party in fact was the party being ultimately affected by
cancellation of the Board’s resolution. Because of Art.14 “no order shall be passed at the back of
a person, prejudicial in nature to him, when it entails civil consequences.” This is how Art 14 of
the Constitution holds element of Natural justice into it.

Article 21 lays down that no person shall be deprived of his life or personal liberty except,
according to ‘procedure established by law’. The most important word under this Article is
‘procedure established by law’ the question arises whether these words can be read as rules of
natural justice. i.e. whether ‘law’ under Article 21 can be read as principles of natural justice? To
this question The Supreme Court ruled by majority that the word ‘law’ in Art. 21 could not be
read as rules of natural justice. These rules (natural justice principles) were vague and indefinite

~ 162 ~
and the constitution could not be read as laying down a vague standard. Nowhere in the
constitution was the word ‘law’ used in the sense of abstract law or natural justice.

The word ‘law’ was used in the sense of State (lex) made law and not natural law (jus). The
expression ‘procedure established by law’ would therefore mean the procedure as laid down in
an enacted law. On the other hand, Fazal Ali, J., disagreeing with the majority view, held that the
principle of natural justice that ‘no one shall be condemned unheard’ was part of general law of
the land and the same should accordingly be read into Art 21. However, later on majority opinion
of A.K. Gopalan was discarded; this is because right to life does not mean mere animal
existence. This right cannot be allowed to violate by law, which is wholly unreasonable, such
law must be reasonable, fair and just. These terminologies are similar in content that of ‘due
process’ clause of American constitution. Accordingly such law must prove substantive
reasonableness as well as procedural reasonableness, later one requires such procedure should be
‘fair’, fairness requires reasonable notice, reasonable opportunity of hearing, legal representation,
reasons for decision, etc. which are the fundamental component of natural justice.

In Maneka Gandhi v. Union of India, SC by realizing the implications of Gopalan during 1975
emergency took ‘U’ turn and held that “Art 21 would no longer mean that law could prescribe
some semblance of procedure however arbitrary or fanciful, to deprive a person of his personal
liberty. It now means that the procedure must satisfy certain requisites in the sense of being fair
and reasonable. The procedure “cannot be arbitrary, unfair or unreasonable”. The concept of
reasonableness must be projected in the procedure contemplated by Art.21. The Court has now
assumed the power to adjudge the fairness and justness of procedure established by law to
deprive a person of his personal liberty. The Court has reached this conclusion by holding that
Arts. 21, 19 and 14 are mutually exclusive, but are inter-linked.

Bhagawati, J., “the principle of reasonableness which legally as well as philosophically is an

essential element of equality or non-arbitrariness pervades art 14 like a brooding omnipresence”.
Thus, the procedure in Art. 21 “must be right, just and fair” and not arbitrary, fanciful or
oppressive, otherwise, it would be no procedure at all and the requirement of Art. 21 would not

~ 163 ~
be satisfied. In the same case Iyer, J., opined procedure in Art. 21, means fair, not formal,
procedure; ‘law’ is reasonable law and not any enacted piece. This makes the words “procedure
established by law” by and large synonymous with the ‘procedural due process’ in the U.S.A.
this makes the right of hearing a component part of natural justice. Accordingly as result of this
epoch making judgment in Maneka Gandhi case Court came to conclusion that ‘as the right to
travel abroad falls under Art. 21, natural justice must be applied while exercising the power of
impounding a passport under the passport Act. Although the passport Act does not expressly
provide for the requirement of hearing before a passport is impounded, yet the same has to be
implied therein’.

Supreme Court of India knowing the importance of ‘fair trial’ by liberal interpretation of Art. 21,
made several provision for the protection of accused and provided adequate safeguards to defend
his case. SC is of the opinion that conducting a fair trial for those who are accused of criminal
offences is the cornerstone of democracy. Conducting a fair trial is beneficial both to the accused
as well as to the society. A conviction resulting from an unfair trial is contrary to our concept of
justice.

The Supreme Court has taken a gigantic innovative step forward in humanizing the
administration of criminal justice by suggesting that free legal aid be provided by the State to
poor prisoners facing a prison sentence. When an accused has been sentenced by a Court, but he
is entitled to appeal against the verdict, he can claim legal aid: if he is indigent and is not able to
afford the counsel, the State must provide a counsel to him. The Court has emphasized that
the lawyer’s services continued an ingredient of fair procedure to a prisoner who is seeking his
liberation through the Court’s procedure, Bhagwati, J., has observed in Hussainara Khatoon
case.

“Now, a procedure which does not make available legal service to an accused person who is too
poor to afford a lawyer and who would, therefore, have to go through the trial without legal
assistance, cannot possibly be regarded as ‘reasonable, fair and just”. Accordingly in India free-
legal aid to indigent or disabled person is considered to be essential component of Natural

~ 164 ~
Justice. To ensure free legal aid to citizen of India Art 39A is inserted in part IV of the
constitution which states that, The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid,
by suitable legislation or schemes or in any other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities. Accordingly
sufficient safeguard has been provided under Indian Constitutionto get Legal representation.

Article 22 gives protection to arrested person against arrest and detention in certain cases which
within its ambit contains very valuable element of natural justice.

(1) No person who is arrested shall be detained in custody without being informed, as
soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult,
and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no
such person shall be detained in custody beyond the said period without the authority of
the Magistrate.

Article 22 (1) and (2) confers four following fundamental rights upon a person who has been
arrested:

i) Right to be informed, as soon as may be, of the grounds for such arrest.
ii) Right to consult and to be defended by a legal practitioner of his choice.
iii) Right to be produced before the nearest magistrate within twenty-four hours of his
arrest excluding the time necessary for the journey from the place of arrest to the
Court of Magistrate.
iv) Right not to be detained in custody beyond the period of twenty four hours
without the authority of the Magistrate.

Right to be informed of the Grounds of Arrest:

~ 165 ~
The object underlying the provision that the ground for arrest should be communicated to the
person arrested appears to be this. On knowing about the grounds of arrest, the detenue will be in
a position to make an application to the appropriate court for bail or move the High Court for a
writ of habeas corpus. The Supreme Court observed that Article 22 (1) embodies a rule which
has always been regarded as vital and fundamental for safeguarding personal liberty in all legal
systems where the Rule of Law prevails. Information as to the grounds of arrest provide
reasonable opportunity to prepare a case by detenu, such grounds must be precise clear and
unambiguous, if the grounds are not fully disclosed to accused than it would amount to denial of
‘fair hearing’ and results into violation of Natural Justice.

In re, Madhu Limaye the facts were: Madhu Limaye, Member of the Lok Sabha and several other
persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the Supreme
Court under Article 32 mentioning that he along with his companions had been arrested but had
not been communicated the reasons or the grounds for arrest. It was stated that the arrested
persons had been merely told that the arrest had been made “under sections which are bailable”.
In the return filed by the State this assertion had neither been controverted nor had anything been
stated with reference to it. One of the contentions raised by Madhu Limaye was that there was a
violation of the mandatory provisions of Article 22 (1) of the Constitution.

The Supreme Court observed that Article 22 (1) embodies a rule which has always been regarded
as vital and fundamental for safeguarding personal liberty in all legal systems where the Rule of
Law prevails. The court further observed that the two requirements of Clause (1) of Article 22
are meant to afford the earliest opportunity to the arrested person to remove any mistake,
misapprehension or misunderstanding in the minds of the arresting authority and, also to know
exactly what the accusation against him is so that he can exercise the second right, namely of
consulting a legal practitioner of his choice and to be defended by him. Those who feel called
upon to deprive other persons of liberty in the discharge of what they conceive to be their duty
must, strictly and scrupulously, observe the forms and rules of law.

Right to consult and to be defended by Legal Practitioner:

~ 166 ~
As we already dealt under Article 21 that principle of fair hearing requires adequate legal
representation, this principle is carried forward by Art. 22 (1). Art 22(1) guarantees right of legal
representation by advocate of his choice. The Article does not require the state to extend legal
aid as such but only requires to allow all reasonable facilities to engage a lawyer to the person
arrested and detained in custody. The choice of counsel is entirely left to the arrested person. The
right to consult arises soon after arrest.

In Nandini Satpathy v. P.L. Dani the Supreme Court observed that Article 22 (1) directs that the
right to consult an advocate of his choice shall not be denied to any person who is arrested. This
does not mean that persons who are not under arrest or custody can be denied that right. The
spirit and sense of Article 22 (1) is that it is fundamental to the rule of law that the services of
a lawyer shall be available for consultation to any accused person under circumstances of near-
custodial interrogation. Moreover, the observance of the right against self-incrimination is best
promoted by conceding to the accused the right to consult a legal practitioner of his choice.
Lawyer's presence is a constitutional claim in some circumstances in our country also, and in the
context of Article 20(3) is an assurance of awareness and observance of the right to
silence. Nandini Satpathy's Case makes a clear departure from the literal interpretation stance of
the Supreme Court in earlier cases. The case added an additional fortification to the right to
counsel. The Supreme Court went a step forward in holding that Article 22(1) does not mean that
persons who are not strictly under arrest or custody can be denied the right to counsel. The Court
enlarged this right to include right to counsel to any accused person under circumstances of near-
custodial interrogation.

In Joginder Kumar v. State of U.P. The Supreme Court held that right of arrested person upon
request, to have someone informed about his arrest and right to consult privately with lawyers
are inherent in Articles 21 and 22 of the Constitution. The Supreme Court observed that no arrest
can be made because it is lawful for the Police officer to do so. The existence of the power to
arrest is one thing. The justification for the exercise of it is quite another. The Police Officer
must be able to justify the arrest apart from his power to do so. Arrest and detention in police

~ 167 ~
lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No
arrest should be made by Police Officer without a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as
to the person's complicity and even so as to the need to effect arrest.

The Supreme Court issued the following requirements:

(1) An arrested person being held in custody is entitled, if he so requests, to have one friend,
relative or other person who is known to him or likely to take an interest in his welfare
told as far as practicable that he has been arrested and where is being detained.
(2) The Police Officer shall inform the arrested person when he is brought to the police
station of this right.
(3) An entry shall be required to be made in the Diary as to who was informed of the arrest.
These protections from power must be held to flow from Articles 21 and 22 (1) and
enforced strictly. The above requirements shall be followed in all cases of arrest till legal
provisions are made in this behalf. In M. H. Hoskot v. State of Maharashtra it was
observed by the Supreme Court that generally speaking and subject to just exceptions, at
least a single right of appeal on facts, where criminal conviction is fraught with long loss
of liberty, is basic to civilized jurisprudence. Every step that makes the right of appeal
fruitful is obligatory and every action or inaction which stultifies it is unfair and
unconstitutional. Pertinent to the point are two requirements: (i) service of a copy of the
judgment to the prisoner in time to file an appeal and (ii) provision of free legal services
to a prisoner who is indigent or otherwise disabled from securing legal assistance where
the ends of justice call for such service. Both these are State responsibilities
under Article 21. Where the procedural law provides for further appeal these
requirements will similarly apply. One of the ingredients of fair procedure to a prisoner,
who has to seek his liberation through the court process is lawyer's services. Judicial
justice, with procedural intricacies, legal submissions and critical examination of
evidence, leans upon professional expertise and a failure of equal justice under the law is
on the cards where such supportive skill is absent for one side. The Indian socio-legal

~ 168 ~
 milieu makes free legal service at trial and higher levels, an imperative processual piece
of criminal justice where deprivation of life or personal liberty hangs in the judicial
balance. Partial statutory implementation of the mandate is found in S. 304 Cr. P.C., and
in other situations courts cannot be inert in the face of Article 21 and 39-A. Maneka
Gandhi's Case has laid down that personal liberty cannot be cut out or cut down without
fair legal procedure. Enough has been set out to establish that a prisoner, deprived of his
freedom by court sentence but entitled to appeal against such verdict, can claim, as part
of his protection under Article 21 and as implied in his statutory right to appeal, the
necessary concomitant of right to counsel to prepare and argue his appeal.
(4) If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional
or statutory right of appeal, inclusive of special leave to appeal for want of legal
assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A
of the Constitution, power to assign counsel for such imprisoned individual 'for doing
complete justice'. The inference is inevitable that this is a State's duty and not
Government's charity. Equally affirmative is the implication that while legal services
must be free to the beneficiary the lawyer himself has to be reasonably remunerated for
his services. Naturally, the State concerned must pay a reasonable sum that the court may
fix when assigning counsel to the prisoner. Of course, the court may judge the situation
and consider from all angles whether it is necessary for the ends of justice to make
available legal aid in the particular case. That discretion resides in the Court. This is the
present position relating to legal representation to detenu U/Art 22(1).
(5) Art 22 (4) to (7) deals with preventive detention, Art. 22(5) provides same safeguards to
person detained under Preventive Detention Laws, like Under COFEPOSA-1974,
National Security-1980, etc. In Nandlal Bajaj v. State of Punjab, the Court allowed legal
representation to the detainee through a lawyer even when Section 11 of the Prevention
of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980,
and Sec 8(e) of COFEPOSA- 1974 denied legal representation in express term, because
state had been represented through a lawyer. The SC observed even when the law does
not allow legal representation to the detenu, he is entitled to make such a request and the

~ 169 ~
 advisory board is bound to consider this request on merit, and Board is not preclude to
allow such assistance when it allows the state to be represented through a lawyer.

Articles 32, 226 and 227

Articles 32 and 226 of the constitution provides for constitutional remedies for violation of
fundamental Rights and other legal rights respectively remedies, Under Art 32 and 226 can be
exercised by issuing appropriate Writ, Direction and Orders. Writs in the nature of Habeas
Corpus mandamus, prohibition quo-warranto and certiorari. Writ of Habeas Corpus is invoked to
prevent unlawful detention and Mandamus is invoked to compel public official to perform his
legal duties. Whereas Writ of Prohibition and Certiorari are used to prevent Judicial and quasi-
judicial bodies from acting without jurisdiction, in excess of jurisdiction, or where error of law
apparent on face of record, violation of Fundamental Right and on the ground of violation of
Principles of Natural Justice. However, in recent time it is new development that Writ of
Certiorari can also be invoked against Administrative authority exercising adjudicatory function.

In U.P. Warehousing Corporation v. Vijay Narain, in this case Court held that Writ of certiorari
or prohibition usually goes to a body which is bound to act fairly or according to natural justice
and it fails to do so. In the same manner where the decision is affected by bias, personal, or
pecuniary, or subject matter as the case may be considered as violation of principle of natural
justice. In such circumstances also writ of certiorari and prohibition can be issued both Under Art
32 and 226. In Manacle v. Dr. Premchand, speaking for SC, Gagendragadkar, J., remarked: “it
is obvious that pecuniary interest, however small it may be in the subject matter of matter of the
proceedings, would wholly disqualify a member from acting as judge. In Gullapalli Nageshwar
Rao v. APSRTC, the SC quashed the decision of the AP Govt., nationalizing Road transport on
the ground that the Secretary of the Transport Department who was given a hearing was
interested in the subject matter. Any order made in violation of principles of natural justice is
void ab-initio and is liable to be annulled and cancelled. The Supreme Court in Nawab Khan
Abbas Khan v.State of Gujarat, held that an order which infringes a fundamental freedom passed
in violation of the audi alteram partem rule is a nullity. When a competent court holds such

~ 170 ~
official act or order invalid or sets it aside, it operates from nativity, i.e. the impugned act or
order was never valid.

In Parry &Co. v. P.C.Pal, it was observed that writ of certiorari is generally granted when a
Court has acted without or in access its jurisdiction. It is available in those cases where a tribunal
though competent to enter upon an inquiry, acts in flagrant disregard of the rules of procedure or
violates the Principles of Natural Justice, where no particular procedure is prescribed. Where the
tribunal has disabled itself from reaching a fair decision by some considerations extraneous to
the evidence and the merits of the case or where the conclusion on the very face of it is so wholly
arbitrary and caprices that no reasonable person can ever have arrived at the conclusion
interference under Art. 226 would be justified.

Apart from Articles 32 and 226, it is Art 227 which can be used by High Court as another
extraordinary weapon to prevent violation principles of natural justice in any of the lower courts
or tribunals as the case may be. Art 227 runs as follows:

Power of superintendence over all courts by the High Court.-

(1) Every High Court shall have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may
(a) Call for returns from such courts;
(b) Make and issue general rules and prescribe forms for regulating the practice and
proceedings of such courts; and
(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of
any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks
and officers of such courts and to attorneys, advocates and pleaders practicing therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or
clause (3) shall not be inconsistent with the provision of any law for the time being in
force, and shall require the previous approval of the Governor.

~ 171 ~
 (4) Nothing in this article shall be deemed to confer on High Court powers of
superintendence over any court or tribunal constituted by or under any law relating to the
Armed Forces.
High Court may in exercise of its power of superintendence issue direction, Order or writ
in cases where it felt that there is violation of principles of natural justice accordingly it is
one of the constitutional provisions framed in the spirit of principles of natural justice.

Article 311 and Principles of Natural Justice:

Article 311 deals with Dismissal, removal, or reduction in rank of persons employed in civil
capacities under the Union or a State, though Art. 310 of the constitution adapts ‘doctrine of
Pleasure’ Art 311 constitution provides sufficient safeguards against misuse of such power, (1)
of Art 311 declares that no person who is a member of civil service of the Union or an all-India
service of State or holds a civil post under Union or a State shall be dismissed or removed by an
authority subordinate to that by which he was appointed and Clause (2) of Art.311 declares no
such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry
in which he has been informed of the charges against him and given a reasonable opportunity of
being heard in respect of those charges. The word ‘reasonable opportunity of being heard’
includes all the dimension of principles of natural justice, accordingly no dismissal, removal, or
reduction of rank of civil servant can be made without giving reasonable opportunity of being
heard.

In Punjab National Bank v. Kuna Bihar Mira, the following question was raised: when the
inquiry officer, during the course of the disciplinary proceedings, comes to the conclusion that
the charges of misconduct against an official are not proved, then can the disciplinary authority
differ from that view and give a contrary finding without affording and opportunity to the
delinquent officer The Court has ruled that natural justice demands that the authority which
proposes to hold the delinquent officer guilty must give him a hearing. If the inquiry officer olds
the charges to be proved then the report has to be given to the delinquent officer who can make a

~ 172 ~
representation before the disciplinary authority takes further action prejudicial to the delinquent
officer.

Article 311 requires the authority, which has to take a final decision and can impose a penalty, to
give an opportunity to the officer charged of misconduct to file representation before the
disciplinary authority records its findings on charges framed against the officer. This is
because before imposing the punishment, the employer is expected to conduct a proper enquiry
in accordance with the provisions of the Standing Orders, if applicable, and principles of natural
justice. The enquiry should not be an empty formality.

Effect of failure of natural justice in proceedings contemplated U/Art. 311 is defends upon the
following circumstances (i) where there is total violation of natural justice, i.e., where no
opportunity of hearing has been given: where there has been no notice/ no hearing at all; and
(ii) Where a facet of natural justice has been violated, i.e. where there has been adequate
opportunity of hearing, or where a fair hearing is lacking.

In situation (i), the order would undoubtedly be void. In such a case, normally, the authority
concerned can proceed afresh according to natural justice.

In situation (ii), the Court has to see whether in totality of the circumstances, the delinquent
servant did or did not have affair hearing. While applying the audi alterm partem rule, the
ultimate and overriding objective must be kept in mind, to ensure a fair hearing and to ensure
that there is no failure of justice. These prepositions were laid down by Hon’ble SC in State Bank
of Patiala v. S.K.Sharma, these prepositions equally applies to inquiry affected by bias, enquiry
officer should be a person with an open mind and he should hold an impartial domestic enquiry.
He should not be based either in favour of the department or against the person against whom the
inquiry is to be held, or prejudge the issue, or have a foreclosed mind, or have pre-determined
notions.

An inquiry by a person who is biased against the charged officer is clear denial of reasonable
opportunity. For example, one and the same person cannot be a judge and a witness in the same

~ 173 ~
case. Therefore, the inquiry officer cannot also be a witness against the servant against whom he
is holding the inquiry; such a procedure denotes a biased state of mind against the person
concerned.

In Kuldeep Singh v. Commissioner of Police, the SC held that the inquiry office as biased as he
“did not sit with an open mind to hold an impartial domestic inquiry which is an essential
component of natural justice as also that of “reasonable opportunity”, contemplated by Art.
311(2) of the Constitution.” The enquiry officer, said the Court, acted arbitrarily in the matter
and found the employee guilty in such a coarse manner that it became apparent that he was
merely carrying out the command from some superior officer who perhaps directed to “fix him
up”.

However, merely because officer holding enquiry is not liked by servant there may not be
possibility of bias and no proceeding in such circumstance said to be affected by bias, there is
authority for the view that, where there are certain rules governing the procedure of enquires, the
mere violation of such rules will not give a party a cause of action unless there has been,
inconsequence, prejudice caused.

Another important question here is should an Advocate be Permitted in all Domestic Enquiries?
In the Board of Trustees v. Nadkarni the Supreme Court stated that in the past there was informal
atmosphere before a domestic enquiry forum and that strict rules of procedural law did not
hamstring the enquiry. We have moved far away from this stage. The situation is where the
employer has on his pay rolls Labour Officers. Legal Advisors, Lawyers in the garb of
employees and they are appointed as Presenting Officers and the delinquent employee pitted
against such legally trained personnel has to defend himself.

However, the fact is that the weighted scales and tilted balance can only be partly restored if the
delinquent is given the same legal assistance as the employer. It applies with equal vigour to all
those who must be responsible for fair play. When the Bombay Port Trust Advisor and Junior
Assistant Legal Advisor would act as the Presenting cum Prosecuting Officer in the enquiry, the
employee was asked to be represented by a person not trained in law, was held utterly unfair and

~ 174 ~
unjust. The employee should have been allowed to appear through legal practitioner and failure
vitiated the enquiry. In Ghatge Patil Transport Pvt. Ltd. v. B. K. Patel and Others. Apart from
the provisions of law, it is one of the basic principles of natural justice that the enquiry should be
fair and impartial. Even if there is no provision in the Standing Orders or in Law, wherein an
enquiry before the domestic mind, if he seeks permission to appear through a legal practitioner
the refusal to grant this request would amount to a denial of reasonable request to defend himself
and the essential principles of natural justice would be violated. And in India Photographic Co V.
Sumatra Mohan Kumar though the court should discourage involvement of legal practitioners in
simple domestic enquiries, like disciplinary enquiries, for avoiding complications and delays, yet
the court’s refusal of such representation would constitute failure of the enquiry itself. Principles
of Natural Justice demands conceding to such a claim. No general rule can be laid down in this
respect but the issue must be left for the consideration in the light of the facts and circumstances
of each individual case. The view of Calcutta HC appears to be correct.

Further in enquiry when Principles of Natural Justice have not been observed, if the disciplinary
authority comes to the conclusion that the inquiry was not made in conformity with principles of
natural justice, it can also remit the case for further enquiry on all or some of the charges. The
discretion in this regard should be exercised by the disciplinary authority for adequate reasons to
be recorded in writing. A further enquiry may be ordered, for example, when there are grave
lacunae or procedural defects vitiating the first enquiry and not because the first enquiry had
gone in favour of the delinquent officer. In latter type of cases, the disciplinary authority can, if it
is satisfied on the evidence on record, disagree with the findings of the Inquiring Authority.

In this context the following observations of the Rajasthan High Court in Dwarka Chand v. State
of Rajasthan are relevant: If we were to hold that a second departmental enquiry could be
ordered after the previous one has resulted in the exoneration of a public servant the danger of
harassment to the public servant, would in our opinion, be immense. If it were possible to ignore
the result of an earlier departmental enquiry, then there will be nothing to prevent a superior
officer, if he were so minded, to order a second or a third or a fourth or even a fifth departmental
enquiry after the earlier ones had resulted in the exoneration of a public servant.

~ 175 ~
Article 311 (2) provides invaluable safeguards to civil servants but at the same time provides
some exception to requirement of natural justice, under following circumstance reasonable
opportunity of being heard is not essential to civil servants under Union of India or a State.

(i) Where a person is dismissed, removed or reduced in rank on the ground of

misconduct which has led to his conviction on a criminal charge.
(ii) Where the authority empowered to dismiss or remove a person or to reduce him in
rank is satisfied that for some reason, to be recorded by that authority in writing, it is
not reasonably practicable to hold such an enquiry.
(iii) Where the President or the Governor as the case may be is satisfied that in the interest
of the Security of the State, it is not expedient to hold such enquiry.

Referring to Article 311 (2) (b), the judges have pointed out that sometimes by not taking prompt
action might result in the situation worsening and at times becoming uncontrollable. This could
also be construed by the trouble makers and agitators as a sign of weakness on the part of the
authorities. It would not be reasonably practicable to hold an inquiry where the Government
Servant terrorizes threatens or intimidates disciplinary authority or the witnesses to the effect that
they are prevented from taking action or giving evidence against him. It would not be reasonably
practicable to hold the enquiry where an atmosphere of violence or general indiscipline and
insubordination prevails.

This is about constitutional provision embedded with principles of natural justice.

In a welfare state like India, the role and jurisdiction of administrative agencies is increasing at a
rapid pace and with rapid expansion of state liability and civic needs of the people conferment of
administrative discretion became need of an hour. With expansion in scope of discretionary
power of administrative authority the regulatory measures are to be equipped with sufficient
power to prevent abuse of discretion. In this regard Constitutionalized rule of law country like
India, component of natural law, i.e. fair play in action must be found and re-proclaimed by
judiciary to keep intact the supremacy of rule of law in India. In this regard author submits that
“the rules of natural justice can operate only in areas not covered by law validly made” such old

~ 176 ~
judicial decisions of Apex Court and other High Court must be reconsidered and correct view
would be declaring principles of natural justice necessary corollary of Law, they must operate in
presence of and even in contravention to the established law where the interest of justice
demands.

In India, the principles of natural justice are firmly grounded in Article 14 & 21 of
the Constitution. With the introduction of concept of substantive and procedural due process
in Article 21, all that fairness which is included in the principles of natural justice can be read
into Art. 21. The violation of principles of natural justice results in arbitrariness; therefore,
violation of natural justice is a violation of Equality clause of Art. 14.

Social Justice

In this head, we will be discussing the concept of Social Justice. Social justice is
the fair and just relation between the individual and society. The term social justice was first
used in 1840 by a Sicilian priest, Luigi Taparelli d'Azeglio, and given prominence by Antonio
Rosmini Serbati in La Costitutione Civile Secondo la Giustizia Sociale in 1848. It has also
enjoyed a significant audience among theorists since John Rawls book. A Theory of Justice has
used it as a pseudonym of distributive justice.

The concept of social justice is a revolutionary concept which provides meaning and significance
to life and makes the rule of law dynamic. When Indian society seeks to meet the challenge of
socio-economic inequality by its legislation and with the assistance of the rule of law, it seeks to
achieve economic justice without any violent conflict. The ideal of a welfare state postulates
unceasing pursuit of the doctrine of social justice. That is the significance and importance of the
concept of social justice in the Indian context of today.

The idea of welfare state is that the claims of social justice must be treated as cardinal and
paramount. Social justice is not a blind concept or a preposterous dogma. It seeks to do justice to
all the citizen of the state. Democracy, therefore, must not show excess of valour by imposing
unnecessary legislative regulations and prohibitions, in the same way as they must not show

~ 177 ~
timidity in attacking the problem of inequality by refusing the past the necessary and reasonable
regulatory measures at all. Constant endeavour has to be made to sustain individual freedom and
liberty and subject them to reasonable regulation and control as to achieve socio-economic
justice. Social justice must be achieved by adopting necessary and reasonable measures. That,
shortly stated, is the concept of social justice and its implications. Citizens zealous of their
individual freedom and liberty must co-operate with democracy which seeks to regulate freedom
and liberty in the interest of social good, but they must be able to resist the imposition of any
restraints on individual liberty and freedom which are not rationally and reasonably required in
the interests of public good, in a democratic way. It is in the light of these difficult times that the
rule of law comes into operation and the judges have to play their role without fear or favour,
uninfluenced by any considerations of dogma or isms. The term social justice is a blanket term
so as to include both social justice and economic justice.

Social Justice is measured by the explicit and tacit terms for the distribution of wealth,
opportunities for personal activity and social privileges. In Western as well as in older Asian
cultures, the concept of social justice has often referred to the process of ensuring that
individuals fulfill their societal roles and receive what was their due from society. In the current
global grassroots movements for social justice, the emphasis has been on the breaking of barriers
for social mobility, the creation of safety nets and economic justice.

Social justice assigns rights and duties in the institutions of society, which enables people to
receive the basic benefits and burdens of cooperation. The relevant institutions often
include taxation, social insurance, public health, public school, public services, labour
law and regulation of markets, to ensure fair distribution of wealth, equal opportunity, and
equality of outcome.

Interpretations that relate justice to a reciprocal relationship to society are mediated by

differences in cultural traditions, some of which emphasize the individual responsibility toward
society and others the equilibrium between access to power and its responsible use. Hence, social
justice is invoked today while reinterpreting historical figures such as Bartolomé de las Casas, in

~ 178 ~
philosophical debates about differences among human beings, in efforts for gender, racial
and social equality, for advocating justice for migrants, prisoners, the environment, and the
physically and mentally disabled.

While the concept of social justice can be traced through the theology of Augustine of Hippo and
the philosophy of Thomas Paine, the term "social justice" became used explicitly from the 1840s.
A Jesuit priest named Luigi Taparelli is typically credited with coining the term, and it spread
during the revolutions of 1848 with the work of Antonio Rosmini-Serbati. In the late industrial
revolution, progressive American legal scholars began to use the term more, particularly Louis
Brandeis and Roscoe Pound. From the early 20th century it was also embedded in international
law and institutions; the preamble to establish the International Labour Organization recalled that
"universal and lasting peace can be established only if it is based upon social justice." In the later
20th century, social justice was made central to the philosophy of the social contract, primarily
by John Rawlsin A Theory of Justice (1971). In 1993, the Vienna Declaration and Programme of
Action treats social justice as a purpose of the human rights education.

Social Justice and the Constitution of India

The Constitution of India has solemnly promised to all its citizens justices-social, economic and
political; liberty of thought expression, belief, faith and worship; equality of status and of
opportunity; and to promote among the all fraternity assuring the dignity of the individual and
the unity of the nation. The Constitution has attempted to attune the apparently conflicting claims
of socio-economic justice and of individual liberty and fundamental rights by putting some
relevant provisions.

Article 19 enshrines the fundamental rights of the citizens of this country. The seven sub-clauses
of Article 19(1) guarantee the citizens seven different kinds of freedom and recognize them as
their fundamental rights. Article 19 considered as a whole furnishes a very satisfactory and
rational basis for adjusting the claims of individual rights of freedom and the claims of public
good.

~ 179 ~
Articles 23 and 24 provide for fundamental rights against exploitation. Article 24, in particular,
prohibits an employer from employing a child below the age of 14 years in any factory or mine
or in any other hazardous employment. Article 31 makes a specific provision in regard to the
fundamental right to property and deals with the vexed problem of compulsory acquisition of
property.

Article 38 requires that the state should make an effort to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice social, economic
and political shall inform all the institutions of national life. Article 39 clause (a) says that the
State shall secure that the operation of the legal system promotes justice, on a basis of equal
opportunity, and shall, in particular provide free legal aid, by suitable legislation or schemes, or
in any other way, to ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.

Article 41 recognizes every citizen's right to work, to education & to public assistance in cases of
unemployment, old age, sickness & disablement and in other cases of undeserved want. Article
42 stresses the importance of securing just and humane conditions of work & for maternity relief.
Article 43 holds before the working population the ideal of the living wage and Article 46
emphasizes the importance of the promotion of educational and economic interests of schedule
castes, schedule tribes and other weaker sections.

The social problem presented by the existence of a very large number of citizens who are treated
as untouchables has received the special attention of the Constitution as Article 15 (1) prohibits
discrimination on the grounds of religion, race, caste, sex, or place of birth. The state would be
entitled to make special provisions for women and children, and for advancement of any social
and educationally backward classes of citizens, or for the SC/STs. A similar exception is
provided to the principle of equality of opportunity prescribed by Article 16 (1) in as much as
Article 16(4) allows the state to make provision for the resolution of appointments or posts in
favour of any backward class of citizens which, in the opinion of the state, is not adequately
represented in the services under the state. Article 17 proclaims that untouchability has been

~ 180 ~
abolished and forbids its practice in any form & it provides that the enforcement of
untouchability shall be an offence punishable in accordance with law. This is the code of
provisions dealing with the problem of achieving the ideal of socio- economic justice in this
country which has been prescribed by the Constitution of India.

Judicial Approach

In Oriental Insurance Co. Ltd. v. Hansrajbai v. Kodala (2001) the Apex Court held that "The
object is to expeditiously extend social justice to the needy victims of accidents curtailing delay -
If still the question of determining compensation of fault liability is kept alive, it would result in
additional litigation and complications in case claimants fail to establish liability of defendants-
Wherever the Legislature wanted to provide additional compensation, it has done so
specifically."

The Supreme Court has firmly ruled in Balbir Kaur v. Steel Authority of India (2000) that "the
concept of social justice is the yardstick to the justice administration system or the legal justice
and it would be an obligation for the law Courts to apply the law depending upon the situation in
a manner whichever is beneficial for the society" as the respondent Steel Authority of India was
directed to provide compassionate employment to the appellant.

In Superintending Engineer, Public Health, U. T. Chandigarh v. Kuldeep Singh (1997) the

Supreme Court held that "It is the duty of the authorities to take special care of reservations in
appointments as a part of their constitutional duties to accord economic and social justice to the
reserved categories of communities. If ST candidate is not available, the vacancy has to be given
to SC candidate and the reserved roster point has to be filled in accordingly". In Ashok Kumar
Gupta v/s State of U.P. (1997) it was held by the Apex court that "To give proper representation
to SC/ST Dalits in services is a social justice which is a fundamental right to the disadvantaged.
It cannot be said that reservation in promotions is bad in law or unconstitutional."

In Consumer Education and Research Centre v. Union of India (1995) it was held that "Social
justice is a device to ensure life to be meaningful and livable with human dignity. State has to

~ 181 ~
provide facilities to reach minimum standard of health, economic security and civilized living to
the workmen. Social justice is a means to ensure life to be meaningful and livable."

So we can see that the Supreme Court has always stepped in to protect the interest of the Indian
citizens, whether it has been has the case of consumer protection or claiming insurance or be it
representation of suppressed classes. It has used the medium of social justice as an umbrella term
to deliver justice.

Theories of Justice: Rawls, Fuller, Nozick

John Rawls

A Theory of Justice is a work of political philosophy and ethics by John Rawls, in which Rawls
attempts to solve the problem of distributive justice (the socially just distribution of goods in a
society) by utilizing a variant of the familiar device of the social contract. The resultant theory is
known as "Justice as Fairness", from which Rawls derives his two principles of justice: the
liberty principle and the difference principle. First published in 1971, A Theory of Justice was
revised in both 1975 (for the translated editions) and 1999.

In A Theory of Justice, Rawls argues for a principled reconciliation of liberty and equality that is
meant to apply to the basic structure of a well-ordered society. Central to this effort is an account
of the circumstances of justice, inspired by David Hume, and a fair choice situation for parties
facing such circumstances, similar to some of Immanuel Kant's views. Principles of justice are
sought to guide the conduct of the parties. These parties are recognized to face moderate scarcity,
and they are neither naturally altruistic nor purely egoistic. They have ends which they seek to
advance, but prefer to advance them through cooperation with others on mutually acceptable
terms. Rawls offers a model of a fair choice situation (the original position with its veil of
ignorance) within which parties would hypothetically choose mutually acceptable principles of
justice. Under such constraints, Rawls believes that parties would find his favoured principles of
justice to be especially attractive, winning out over varied alternatives,
including utilitarian and right-libertarian accounts.

~ 182 ~
Rawls belongs to the social contract tradition, although he takes a different view from that of
previous thinkers. Specifically, Rawls develops what he claims are principles of justice through
the use of an artificial device he calls the Original position in which everyone decides principles
of justice from behind a veil of ignorance. This "veil" is one that essentially blinds people to all
facts about themselves so they cannot tailor principles to their own advantage:

"...no one knows his place in society, his class position or social status, nor does anyone
know his fortune in the distribution of natural assets and abilities, his intelligence,
strength, and the like. I shall even assume that the parties do not know their conceptions
of the good or their special psychological propensities. The principles of justice are
chosen behind a veil of ignorance."

According to Rawls, ignorance of these details about oneself will lead to principles that are fair
to all. If an individual does not know how he will end up in his own conceived society, he is
likely not going to privilege any one class of people, but rather develop a scheme of justice that
treats all fairly. In particular, Rawls claims that those in the Original Position would all adopt a
maxim in strategy which would maximise the prospects of the least well-off.

"They are the principles that rational and free persons concerned to further their own
interests would accept in an initial position of equality as defining the fundamentals of
the terms of their association."

Rawls bases his Original Position on a "thin theory of the good" which he says "explains the
rationality underlying choice of principles in the Original Position". A full theory of the good
follows after we derive principles from the original position. Rawls claims that the parties in the
original position would adopt two such principles, which would then govern the assignment of
rights and duties and regulate the distribution of social and economic advantages across society.
The difference principle permits inequalities in the distribution of goods only if those inequalities
benefit the worst-off members of society. Rawls believes that this principle would be a rational
choice for the representatives in the original position for the following reason: Each member of
society has an equal claim on their society’s goods. Natural attributes should not affect this

~ 183 ~
claim, so the basic right of any individual, before further considerations are taken into account,
must be to an equal share in material wealth. What, then, could justify unequal distribution?
Rawls argues that inequality is acceptable only if it is to the advantage of those who are worst-
off.

The agreement that stems from the original position is both hypothetical and ahistorical. It is
hypothetical in the sense that the principles to be derived are what the parties would, under
certain legitimating conditions, agree to, not what they have agreed to. Rawls seeks to use an
argument that the principles of justice are what would be agreed upon if people were in the
hypothetical situation of the original position and that those principles have moral weight as a
result of that. It is ahistorical in the sense that it is not supposed that the agreement has ever been,
or indeed could ever have been, derived in the real world outside of carefully limited
experimental exercises.

According to John Rawls, the right conditions for choosing principles of justice can be created
by envisaging what he calls an ‘original position’. The main feature of the original position is the
idea of the veil of ignorance. In this case, we imagine that the people who are to choose the
principle of justice do not know anything about themselves or their situation other than that
which is absolutely necessary to enable them to distinguish and to make a choice between the
alternative sets of principles. This ensures that no one is advantaged or disadvantaged in the
choice of principles by the outcome of natural chance or the contingency of social circumstances
since all are similarly situated and no one is able to design principles to favour his particular
condition.114 The veil of ignorance makes it possible to have a consensus amongst people who
may otherwise disagree with each other in the choice of principles purely for reasons of self-
interest or selfishness. Rawls proposes two principles of justice which he believes that people in
the original position would choose and agree on. He argues that these principles accord with our
most basic institutions about justice and he contends that they should form the basis of any well-
ordered society. Rawls says that these principles should be lexically ordered, and that the first
principle should be lexically prior to the society, i.e., requirements of the first principle should

~ 184 ~
always be met to the fullest extent possible before attempt is made to fulfil the requirements of
the second principle.

Rawl’s First Principle of Justice (The principle of greatest equal liberty)

Each person has an equal right to a fully adequate scheme of equal basic liberties which is
compatible with a similar scheme of liberties for all. The liberties whose distribution is governed
by the first principle include:

(i) Political liberty- i.e. the right to vote and to be eligible for public office;
(ii) Freedom of speech and assembly;
(iii)Liberty of conscience and freedom of thought;
(iv) Freedom of the person along with the right to hold (personal) property;
(v) Freedom from arbitrary arrest and seizure as defined by the concept of the rule of law.

The liberties should be enjoyed equally by all the citizens of a just society, since justice
require them to have the same basic rights.

Rawl’s Second Principle of Justice

Social and economic inequalities are to be arranged so that they are both:

(i) To the greatest advantage of the least advantaged- (i.e. the representative worst of
person)- the difference principle;
(ii) Attached to offices and positions open to all under conditions of fair equality of
opportunity-the principle of fair equality of opportunity.

Rawls’ lexical priority rule means that people in a just society must always be assured to their
liberties before consideration is made to the distribution of material and other primary goods.
Ultimately, this is to ensure that the element of choice, which enables people to define their own
goals, to make up their own plans of life and to pursue such plans utilizing the resources
available to them without undue interference from society, is guaranteed. The priority of the First
Principle to the Second Principle requires that the basic liberty of citizens must not be restricted

~ 185 ~
for the sake of greater material benefits for all, or even for the benefit of those least advantaged.
There can be no trade-offs between liberty and 110 material goods. This is what is referred to as
the priority of liberty. For Rawls, liberty may only be restricted, the effect of such restriction
must be to create a more extensive system of liberty for everyone.

The Two Principles of Justice- In Detail

The First Principle of Justice

"First: each person is to have an equal right to the most extensive basic liberty compatible
with a similar liberty for others."

The basic liberties of citizens are the political liberty to vote and run for office, freedom of
speech and assembly, liberty of conscience, freedom of personal property and freedom from
arbitrary arrest. However, it is a matter of some debate whether freedom of contract can be
inferred to be included among these basic liberties:

"liberties not on the list, for example, the right to own certain kinds of property
(e.g. means of production) and freedom of contract as understood by the doctrine
of laissez-faire are not basic; and so they are not protected by the priority of the first
principle."

The Second Principle of Justice

Social and economic inequalities are to be arranged so that (Rawls, 1971, p. 302; revised
edition, p. 53):
(a) they are to be of the greatest benefit to the least-advantaged members of society,
consistent with the just savings principle. (the difference principle)
(b) offices and positions must be open to everyone under conditions of fair equality of
opportunity
Rawls' claim in (a) is that departures from equality of a list of what he calls
primary goods—"things which a rational man wants whatever else he wants"
[Rawls, 1971, pg. 92]—are justified only to the extent that they improve the lot
of those who are worst-off under that distribution in comparison with the
previous, equal, distribution. His position is at least in some sense egalitarian,
with a provision that inequalities are allowed when they benefit the least
advantaged. An important consequence of Rawls' view is that inequalities can
actually be just, as long as they are to the benefit of the least well off. His

~ 186 ~
 argument for this position rests heavily on the claim that morally arbitrary
factors (for example, the family one is born into) shouldn't determine one's life
chances or opportunities. Rawls is also keying on an intuition that a person does
not morally deserve their inborn talents; thus that one is not entitled to all the
benefits they could possibly receive from them; hence, at least one of the criteria
which could provide an alternative to equality in assessing the justice of
distributions is eliminated.
The stipulation in (b) is lexically prior to that in (a). Fair equality of
opportunity requires not merely that offices and positions are distributed on the
basis of merit, but that all have reasonable opportunity to acquire the skills on the
basis of which merit is assessed. It may be thought that this stipulation, and even
the first principle of justice, may require greater equality than the difference
principle, because large social and economic inequalities, even when they are to
the advantage of the worst-off, will tend to seriously undermine the value of the
political liberties and any measures towards fair equality of opportunity.
In 1972, A Theory of Justice was reviewed in The New York Times Book Review by Marshall
Cohen, who described the work as "magisterial", and suggested that Rawls' use of the techniques
of analytic philosophy made the book the "most formidable" defense of the social
contract tradition to date. He credited Rawls with showing that the widespread claim that
"systematic moral and political philosophy are dead" is mistaken, and with providing a "bold and
rigorous" account of "the principles to which our public life is committed." Though he suggested
that it might take years before a satisfactory appraisal of the work could be made, he noted that
Rawls' accomplishments had been compared by scholars to those of John Stuart
Mill and Immanuel Kant. However, he criticized Rawls for "looseness in his understanding of
some fundamental political concepts."

A Theory of Justice received criticism from several philosophers. Robert Nozick criticized
Rawls' account of distributive justice in his defense of libertarianism, Anarchy, State, and
Utopia (1974). Allan Bloom, writing in American Political Science Review in 1975, noted that A
Theory of Justice had "attracted more attention in the Anglo-Saxon world than any work of its
kind in a generation", attributing its popularity to its being "the most ambitious political project
undertaken by a member of the school currently dominant in academic philosophy" and to
Rawls' "radical egalitarian interpretation of liberal democracy." Bloom criticized Rawls for

~ 187 ~
failing to account for the existence of natural right in his theory of justice and wrote that Rawls
absolutizes social union as the ultimate goal which would conventionalize everything into
artifice. Robert Paul Wolff criticized Rawls from a Marxist perspective in Understanding Rawls:
A Critique and Reconstruction of A Theory of Justice (1977), arguing Rawls offers an apology
for the status quo insofar as he constructs justice from existing practice and forecloses the
possibility that there may be problems of injustice embedded in capitalist social relations, private
property or the market economy.

Michael Sandel criticized Rawls in Liberalism and the Limits of Justice (1982), arguing that
Rawls encourages people to think about justice while divorced from the values and aspirations
that define who they are as persons and that allow people to determine what justice is.[8] Susan
Moller Okin wrote in Justice, Gender, and the Family (1989) that Rawls had provided "the most
influential of all twentieth-century theories of justice", but criticized him for failing to account
for the injustices and hierarchies embedded in familial relations. Economists Kenneth
Arrow and John Harsanyi criticized the assumptions of the original position, and in particular,
the use of maximin reasoning, with the implication that Rawls' selection of parameters for the
original position was result-oriented, i.e., calculated to derive the two principles that Rawls
desired to advance, and/or, as the "contractarian critique" holds, that the persons in the original
position articulated by Rawls would not in fact select the principles that A Theory of
Justice advocates. In reply Rawls emphasized the role of the original position as a "device of
representation" for making sense of the idea of a fair choice situation for free and equal
citizens,[12] and that the relatively modest role that maximin plays in his argument: it is "a useful
heuristic rule of thumb" given the curious features of choice behind the veil of ignorance.

Economist Amartya Sen has raised concerns over Rawls' emphasis on primary social goods,
arguing in Inequality Reexamined (1992) that we should attend not only to the distribution of
primary goods, but also how effectively people are able to use those goods to pursue their
ends. Norman Daniels has wondered why health care shouldn't be treated as a primary good, and
some of his subsequent work has addressed this question, arguing for a right to health care within
a broadly Rawlsian framework.Philosopher Gerald Cohen, in If You're An Egalitarian, How

~ 188 ~
Come You're So Rich? (2000) and Rescuing Justice and Equality (2008), criticizes Rawls'
avowal of inequality under the difference principle, his application of the principle only to social
institutions, and what he sees as his obsession with the using primary goods as his currency of
equality.

Sen criticizes and attempts to revitalize A Theory of Justice in The Idea of Justice (2009). He
credits Rawls for revitalizing the interest in the ideas of what justice means and the stress put on
fairness, objectivity, equality of opportunity, removal of poverty, and freedom. However, Sen, as
part of his general critique of the contractarian tradition, states that ideas about a perfectly just
world do not help redress actual existing inequality. Sen faults Rawls for an over-emphasis on
institutions as guarantors of justice not considering the effects of human behaviour on the
institutions' ability to maintain a just society. Sen believes Rawls understates the difficulty in
getting everyone in society to adhere to the norms of a just society. Sen also claims that Rawls'
position that there be only one possible outcome of the reflective equilibrium behind the veil of
ignorance is misguided. Sen believes that multiple conflicting but just principles may arise and
that this undermines the multi-step processes that Rawls laid out as leading to a perfectly just
society.

A Theory of Justice inspired a 2013 musical, A Theory of Justice: The Musical!, written and
produced by Eylon Aslan-Levy, Ramin Sabi, Tommy Peto and Toby Huelin.

Lon Luvois Fuller

According to Lon Luvois Fuller, there is some over lapping between morality and justice; it is
impossible to have a legal system without fidelity to the rule of law and formal justice. His
debate with H.L.A. Hart which was published in the Harvard Law Review was of prime
importance for shaping the modern conflict between legal positivism and the natural law. In the
opinion of Friedman, in any society there is a close connection between social morality and the
legal order. There cannot be– and there never has been– a complete separation of law and
morality.

The morality of the law may vary, but is real. The basic goodness of all human beings is a
spiritual axiom, a fall-out of the advaita of cosmic creation and the spring of correctional thought

~ 189 ~
in criminology. Lon Fuller contends that the purpose of law is to “subject human conduct to the
governance of rules”. In his book, “The Morality of Law”, Fuller describes eight rules of failure
of any legal system. He narrates the story of an imaginary king named Rex who attempts to rule
but finds he is unable to do so in any meaningful way when any of these conditions are not met.

They are:

1. The lack of rules or law, which leads to ad-hoc and inconsistent adjudication.
2. Failure to publicize or make known the rules of law.
3. Unclear or obscure legislation that is impossible to understand.
4. Retroactive legislation.
5. Contradictions in the law.
6. Demands that are beyond the power of the subjects and the ruled.
7. Unstable legislation (ex. daily revisions of laws).
8. Divergence between adjudication/administration and legislation.

According to Lon Fuller, these principles represent the internal morality of law and compliance
with them leads to substantively just laws and away from evil ones. If any of these principles is
not present in a system of governance, the system will not be a legal one.

It remains to be proved that, while the terminology of morals is still retained, and while the law
does still and always, in a certain sense, measure legal liability by moral standards, it
nevertheless, by the very necessity of its nature, is continually transmuting those moral standards
into external or objective ones, from which the actual guilt of the party concerned is wholly
eliminated.

Criticizing the argument of H.L.A. Hart, Fuller says that on the one hand he rejects emphatically
any confusion of “what is” with “what ought to be.” He will tolerate no “merger” of law and
conceptions of what law ought to be, but at the most an antiseptic “intersection.” Intelligible
communication on any subject, he seems to imply, becomes impossible if we leave it uncertain
whether we are talking about “what is” or “what ought to be.”

~ 190 ~
The history of natural law is a tale of the search of mankind for absolute justice and of its failure.
Again and again, in the course of the last 2,500 years, the idea of natural law has appeared, in
some form or other, as an expression of the search for an ideal higher than positive law after
having been rejected and derided in the interval. Natural law has fulfilled many functions. It has
been the principal instrument in the transformation of the old civil law of the Romans into a
broad and cosmopolitan system; it has been a weapon used by both sides in the fight between the
medieval Church and the German emperors; in its name the validity of international law has been
asserted, and the appeal for freedom of the individual against absolutism launched.

The main drawback of natural law theory is that people have interpreted nature differently.
Therefore, there is ambiguity in deciding the moral law of nature by human reason. The principle
that behaviour in accordance with human nature is morally right and behaviour not in accordance
with human nature is morally wrong cannot be correct in all cases. Natural law terminology
tends to obscure the possibility of criticizing law on other than purely moral grounds. But, the
fact is that law must be evaluated by reference to its efficacy, general convenience, simplicity
and many other factors, as well as by reference to the demands of justice and morality. If two
people disputing about the morality of euthanasia were to agree to accept the verdict of a third
party, any finality so obtained would be illusory. For even after judgment was given either party
could still question the moral correctness of the “judge’s” verdict. Moral disputes, unlike legal
disputes, remain permanently open. According to the critics of Natural Law Theory, it is
doubtful that the inherent nature of human behaviour establishes loss of behaviour in the same
way as it may establish loss of behaviour for animals. The two supporters of Natural Law Theory
namely Thomas Acquinas and Aristotle differ in their views about the role of God in the nature.
Human behaviour may be subject to the environment to which a person is exposed to which
includes social situations, the background in which he was grown up, his education, his family
background etc. This has not been explained by the Natural Law Theory. Further, the difficulty is
that the inference of a moral proposition form a factual statement is not apparently one of strict
logical necessity.

Nozick’s Theory of Distributive Justice

~ 191 ~
Entitlement theory is a theory of distributive justice and private property created by Robert
Nozick in his book Anarchy, State, and Utopia. The theory is Nozick's attempt to describe
"justice in holdings" or what can be said about and done with the property people own when
viewed from a principle of justice.

Nozick's entitlement theory comprises 3 main principles:

1. A principle of justice in acquisition - This principle deals with the initial acquisition of
holdings. It is an account of how people first come to own common property, what types
of things can be held, and so forth.
2. A principle of justice in transfer - This principle explains how one person can acquire
holdings from another, including voluntary exchange and gifts.
3. A principle of rectification of injustice - how to deal with holdings that are unjustly
acquired or transferred, whether and how much victims can be compensated, how to deal
with long past transgressions or injustices done by a government, and so on.

Nozick believes that if the world were wholly just, only the first two principles would be needed,
as "the following inductive definition would exhaustively cover the subject of justice in
holdings":

1. A person who acquires a holding in accordance with the principle of justice in

acquisition is entitled to that holding.
2. A person who acquires a holding in accordance with the principle of justice in
transfer, from someone else entitled to the holding, is entitled to the holding.
3. No one is entitled to a holding except by (repeated) applications of 1 and 2.
Thus, entitlement theory would imply “a distribution is just if everyone is entitled to the
holdings they possess under the distribution”. Unfortunately, not everyone follows these
rules: "some people steal from others, or defraud them, or enslave them, seizing their product
and preventing them from living as they choose, or forcibly exclude others from competing
in exchanges". Thus the third principle of rectification is needed.

~ 192 ~
Entitlement theory is based on John Locke's ideas. Under entitlement theory, people are
represented as ends in themselves and equals, as Kant claimed, though different people may
own (i.e. be entitled to) different amounts of property. Nozick's ideas create a strong system
of private property and a free-market economy. The only just transaction is a voluntary
one. Taxation of the rich to support full robust social programs for the poor are unjust
because the state is acquiring money by force instead of through a voluntary transaction.
However, Nozick's ideas can endorse the creation of a minimal social program for the poor.
Every person in the state of nature can achieve a certain level of welfare according to their
own abilities. This level of welfare, while not equal, must be maintained via the Lockean
Proviso. Given the justice of acquisition condition and the Lockean Proviso, "It is
conceivable that in the normal operation of the economy, a private property regime might at
some times, for some people, fail to provide access to this level of welfare when left to itself.
If so, then justice — as the libertarian understands it — demands that the state act to correct
the distribution of welfare generated by the spontaneous play of market forces."

Differences from other ideals

Entitlement theory contrasts sharply with the Principles of Justice in Rawls' A Theory of
Justice, which states that each person has an equal claim to basic rights and liberties, and that
inequality should only be permitted to the degree that such inequality is "reasonably
expected to be to everyone's advantage". There is a further provision that such inequalities
are only permissible insofar as there is an equality of opportunity to benefit from these
inequalities . Nozick instead argues that people who have or produce certain things have
rights over them: "on an entitlement view, [production and distribution] are not ..separate
questions .. things come into the world already attached to people having entitlements over
them". Nozick believes that unjustly taking someone's holdings violates their rights.
"Holdings to which ..people are entitled may not be seized, even to provide equality of
opportunity for others". Thus, a system which works to reduce the rightfully earned holdings
of some so that they can be equally distributed to others is immoral.

~ 193 ~
 "The major objection to speaking of everyone's having a right to various things such as
equality of opportunity, life, and so on, and enforcing this right, is that these 'rights'
require a substructure of things and materials and actions; and other people may have
rights and entitlements over these. No one has a right to something whose realization
requires certain uses of things and activities that other people have rights and entitlements
over".

Criticism
In his later work, The Examined Life, Nozick reflects that entitlement theory's defense of people's
holdings may have some problems, in that it could eventually lead to the vast majority of
resources being pooled in the hands of the extremely skilled, or, through gifts and inheritance, in
the hands of the extremely skilled's friends and children. Nozick says:

"Bequeathing something to others is an expression of caring about them ..yet bequests

[are] sometimes passed on for generations to persons unknown to the original earner, ..
producing continuing inequalities of wealth and position. .. The resulting inequalities
seem unfair.
One possible solution would be to restructure an institution of inheritance so that taxes
will subtract from the possessions people can bequeath the value of what they themselves
have received through bequests. People then could leave to others only the amount they
themselves have added.
The simple subtraction rule does not perfectly disentangle what the next generation has
managed itself to contribute - inheriting wealth may make it easier to amass more - but it
is a serviceable rule of thumb".
Furthermore, the notion of taxation being inherently unjust, and market transactions being
inherently just, depends on the notion that they actually are as voluntary or involuntary as they
appear: in a nation that permits free emigration of its citizens, taxation is not entirely involuntary,
while market transactions for necessary goods and services can hardly be said to be entirely
voluntary, and if the wealthy, or organized labor, or those in control of de facto industry
standards are able to exert undue influence on such a market, they frequently skew those
transactions to favor their own interests.

Indian Concepts of Justice: Constitution Imperatives

~ 194 ~
This is a research paper entitled “The Ideal of Dharma or Justice in Indian Culture”by Dr. R.
N. Sharma (Professor of Law, Faculty of Law, Jai Narayan Vyas University, Jodhpur).

Justice is not merely right determination and adjudication of disputes and enforcement of Law,
but is so comprehensive in its meaning and import that it takes with in its ambit the whole of
political, social, juristic and moral idealism. It is so, because Justice has reference to the whole of
human existence which we want to realize by our thought, will and action. The mystery of
Justice cannot be unraveled by human reason, logic or language completely. It has greater appeal
to human soul. Justice as reality is only fully reflected in our conscience and felt through our
intuition.

Jurists and philosophers have seen in the concept of justice their own ideal. To Plato Justice is
realization of ‘Good’ which can be achieved in society by doing one’s own duty according to
one’s station in life otherwise, Justice achieves ‘Good’ by retribution; .To Aristotle Justice in its
general meaning is ‘righteousness’. In its particular meaning it means proper or equitable
distribution of the goods of existence, correction of wrongs and exchange of goods. It has thus
distributive, corrective and commutative functions.

1. Dark and Bright Zones of Justice:

In Judaism in the theology of Hebrews we find that in the old testament God is described as
the ‘Just God’ who gives his Commandments or Law and punishes for violation or
disobedience. According to the theological myth God had decreed the whole human race to
suffer for the sins of primal human couple Adam and Eve who had eaten the forbidden or
prohibited fruit of ‘Knowledge’ while living in their, primordial happy abode in the ‘Garden
of Eden’ Adam and Eve were cast down to this mortal earth to suffer the punishment forever.
Mankind as a whole which is the progeny of Adam and Eve thus was made to suffer for the
sins of mankind’s progenitors vicariously without any great hope of salvation. This shows the
grim side of Justice which is sternly punitive and retributive. But it is the one side of the coin,
for it has also the bright side which is represented in the ‘New Testament’ by the prospective
theory of redemption according to which Jesus Christ as the son of God descends on earth

~ 195 ~
 and takes birth to suffer and to be crucified. So he comes to redeem humanity by his own
blood and preaches ‘love thy neighbor’ to all. Justice then becomes pure and unconditional
love of human beings as brothers. Service and sacrifice thus becomes the modes of
enforcement of Justice which uphold the love of man for another man as ‘brother’, for all are
the children of the same God.
These are the two poles of Justice. Which show that the doctrine of justice has a wide horizon
which extends from retribution to reformation, from condemnation to condo nation, from
bondage to redemption and from human guilt to Godly grace. Justice is then also
forgetfulness of wrongs and complete forgiveness in love and sympathy. Justice in this sense
rises above all the false distinctions of class creed and color, social discriminations and
disabilities and becomes man’s pure love, regard, mutual concern and welfare. It enjoins
upon all to love by mutual understanding and respect beyond all the privileges of authority,
status and position. Such an ideal human existence may seem impossible with in the present
frame work of the State in this world today, which is swayed by the sorrow and trouble
generated by mutual distrust, prejudice and greed. But the truth is that in the heart of our
hearts we have begun to realize that all men are brothers and should love each other, that all
power and property is meant ultimately for human service and welfare. Justice in essence is
the message of love, human service and is welfarism. This is the heavenly destination of
Justice which man has necessarily to travel by passing through all the trials and tribulations,
retributions and condemnations to have the grace of salvation from the varied ills and
wrongs, pains and tortures, fears and frauds and all the unnerving illusions and delusions of
human life.

2. Etymology of Justice :
The word justice comes from its Latin root ‘Jus’ meaning ‘right’. It has its literal meaning as
‘binding’ or fitting or tying together of things and qualities harmoniously in human life. Thus
Justice becomes a means of adjustment and a measurement. The idol of Justice blindfolded
with balance in hand gives the expression of balancing, weighing and impartial judging
which applies to disputes and conflicts. For this purpose justice becomes the referee to give

~ 196 ~
 decision of victory or defeat to parties. It seems that Justice has more utility for a conflict
situation. It balances principles like liberty, equality etc. also. Speculation about justice grew
early in western materialistic society which from the very beginning had political orientation
of western society in Greece which had to deal with conflicts. In contrast to this in Indian
culture there had been no loss of faith between religious authority and political authority.
Indian cultural drive from the very beginning is more towards integration and less towards
deciding the conflicts between individual, state and society interse. Law as dharma was both
a verdict and a faith, political trust, the commandment of Law as well as justice.

3. De-Valuation of Justice in Materialistic Positivistic Jurisprudence:

As an ideal Justice is the expression of Right or right living. It therefore, becomes the
standard of evaluation of positive Law. But positivistic Jurisprudence discards morality and
ethics from the sphere of Jurisprudence, for it justice is to be done according the precept of
law only, otherwise justice is only to be treated as sheer morality. This is the view point of
Austinian legal theory. According to Kelsen Justice is not viable to reason and logic. It is
declared as an ‘irrational ideal’, The pragmatic theory of Roscoe Pound considers Justice as
adjustment of human relations and adhoc balancing of interests. American realism is skeptic
about Justice. Scandinavian realists discard all metaphysics and ethics from the theory of
Law. They assert that there can be no science of values and thus reject the theory or concept
of justice down right. For them all values are subjective and therefore devoid of objectivity
and meaning. The traditional idea of justice considers traditional institutions of society as just
while trans-traditional idea of justice derives principles of justice outside systems including
legal system and institutions of society so depreciation of justice goes on.

4. The Functional Role of Justice:

Though it is difficult to know the nature and content of justice yet the idea of justice has been
effective in the course of centuries in performing the function of excluding arbitrariness, in
providing rational method of settling disputes and in restraining the coercive powers of Law.
Justice as impartiality has been recognized from the very beginning of the civilization in
ancient Egypt and the land of early Hebrews. “It has mainly been concerned with control of

~ 197 ~
 aggression and discrimination”. It has helped in mitigation of inequalities generated by
institutions. In the name of justice “certain limitations are embodied in the constitutions. The
exclusion of arbitrariness grows gradually in the sphere of criminal law”. Again in “modern
times the principle of distributive justice of Aristotle has its use for equitable distribution of
means, physical and mental well-being in a highly differentiated and large scale society. We
now agree that gross inequalities are unjust and that it is just that minimum conditions of
well-being be provided to all; yet there is no agreement about just distribution of property.”
Although justice may not be defined but injustice is always felt. So man has some instinct to
repel against injustice. So the glamour for justice continues. The idea of justice has thus
performed the role of bringing reform in Law by making it more and more rational and
humane.”

Therefore “whatever be the difficulties that befall, or encounters are made the search for
justice continues. The plea for justice should not be rejected as meaningless, chimerical,
irrational or false for there is danger that the human race will fall back into a condition of
barbarism and ignorance where unreason will prevail over rationality.

5. Ancient Indian Concept of Dharma As Justice:

Materialistic western Jurisprudence which is the byproduct of exploration of matter,
commercialization of life and its values, promotion of prospects of material comforts, turning
towards territorial aggrandizement, germinating warring ideologies, nurturing or nurtured by
disharmonies of social and individual existence cannot think of spiritual concept like that of
dharma to solve the problems of Law and life. With less faith in religion and inward inquiry
to know the ultimate truth of life, the western mind saw conflict, strife and struggle as the
essential nature of life. To reconcile conflicts and to balance opposing interests without any
reference to religion or God whose authority began to be challenged, the West sought after
the secular doctrine of Justice which had a fighting and overcoming potentiality with enough
militancy. The utilization of balancing and measuring virtue of justice to decide the
conflicting claims of society, State and individual interest, was resorted to but it proved in
vain. So now it seems that the western mind is looking to some other ideological expedients

~ 198 ~
 in the name of justice to get solutions and reliefs from the multifarious contemporary
problems and prevailing maladies of modern life. To the ancient Indian mind. The concept of
Dharma implied the concept of justice to cope with all the exigencies of life. Dharma was not
merely the code of human conduct and regulation of life in detail, it was the Reality itself as
the counterpart of Brahman which was its metaphysical expression. The ultimate reality
reflected by both Dharma and Brahman was described as ‘Sachidanand’, which constituted
of ‘Sat’ as universal existence ‘Chit’ as universal consciousness and eternal Annand as Bliss.
Existence leads to knowledge rightness, reason and truth, consciousness leads to will, power,
action etc. and Annand leads to satisfaction, happiness, peace, welfare etc. From this point of
view Dharma is justice because it is the expression of Right, Truth, Existence etc., which also
implies knowledge and virtue. Dharma as consciousness implies will, desire, power and
action for reformation and regulation of life. Dharma as bliss implies real satisfaction-
material as well as spiritual. The latter is more enduring and is related to soul as the former is
related to body as sensual pleasure. Dharma as right or Justice prevails over wrong or
adharma or injustice.

(a) ‘Sat’– as Justice or Dharma as Right, Truth and Existence:

The reality as existence is not mere physical existence but is total existence of which
human existence is only a little part. The ultimate truth of this existence which is to be
known and realized. Dharma as Justice is the knowledge of Existence as all knowledge
leads to truth. Existence, truth and knowledge are correlative as well as synonymous.
Dharma as justice is right observance of truth in conduct of life i.e. in thought, word and
deed. It then becomes a norm of good and virtuous life. Justice has thus to satisfy the
standard of truth in every way. In ancient India legal trial was called ‘Vyavhar’. As a
variation of Dharma it was considered as an inquiry into truth. Law as Dharma was to be
just and also needed right or true interpretation of the prescriptions of Law. Dharma as
Justice is then observance of truth in thought, word and deed. Truth is said to be always
victorious, and is always convincing and thus satisfying to all. Truth rejects formalism,
superstition, dogmatism and recommends change and reform for progressive realization

~ 199 ~
 of the goals of life by rising above false distinctions of caste, creed and color etc. The so
called injustices in human life can be seen as mere ‘untruths’, ‘sham’s and falsities of
life. Mahatma Gandhi equated truth with God and formulated the theory of ‘Satyagarh’ or
‘holding to truth’ as a method of willful disobedience to unjust law which amounts to
violation of truth as reflected is human soul or man’s conscience. Justice is then ‘truth is
action,’ Vivek or reason is also a method of knowing, or ascertaining the truth of the
matter i.e. to determine truth rightly. As truth is dynamic, reason determines truth or
justice again and again with its new forms and modifications with reference to utility,
mercy, public good in order to make it living and more workable. Reason as truth
derecognizes obsolete customs, wrong practices, and old methods of working like trials
by ordeals, oaths, and stakes and other irrational procedures, appeals, executions etc.
Rational inquiry and investigation has brought about the modernization of administration
of Justice and reform of Law. Again, rational inquiry emphasizes the need of impartiality
which is an essential quality of justice, as deemed necessary to establish the rule of law.
This makes law the ruler of rulers as declared by our Upanishads. Dharma or Justice
without equality and mercy cannot appeal to the heart or soul of man which requires
Dharma or Justice true or adaptable to the circumstances of the case. Again, Justice as
enforcement of truth impartially cannot be done without realization of one’s own
obligation to right performance of one’s duties properly. Therefore right performance of
one’s duties guarantees justice or Dharma according to ‘Gita’. Dharma or Justice, then
resides in, truth, reason, impartiality and in performance of one’s duties which has
reference to total good of human existence on this earth.

(b) Chit as Justice or Dharma as Shakti or Power, as will and determination- Theory of
Karma and Dandniti:-

Justice as knowledge has power to work as well as to make men virtuous by

enlightenment. In its retributive aspect it is power of punishment and rewards which is
necessary to maintain social order, peace and security. In Indian culture justice is also
vindicated by the inexorable law of Karma as natural law or natural justice which works

~ 200 ~
automatically and governs also rebirth and transmigration of souls. It depends on the
principle of just result of actions and is exemplified by the precept “as you sow, so shall
you reap”. So natural as well as moral retribution governs this world by its ‘Karmic’
Justice which holds man fully responsible for his actions. On this principle a man must
suffer for his wrongful actions. As a matter of right the State by its power of punishment
is only enforcing the law of Karma as Dharma or Justice which is called Dandniti in
Ancient India. Retributive punishment for vindication of law is thus “an extension of the
principle of causation in nature and becomes the principle of natural action”. The doctrine
of rebirth and transmigration of souls is the logical outcome of the Law of ‘Karma’. It
also provides an explanation of man’s present status and position in society which is seen
as the result of his past ‘Karma’s or deeds in previous life. “After death, Yama, the God
of Justice or Dharma, Judges men’s actions when brought to his court by his messengers
according to which the next birth is determined” 1 . As a man cannot live without
performance of actions, ‘Gita’ exhorts man to perform actions according to one’s duty
enjoined by Dharma or Law without any desire for fruits or rewards i.e., dispassionately
in the spirit of ‘Yajna’ or the spirit of sacrifice. The doctrine of Karma is also interpreted
by Lok Manya Tilak as a principle of collective justice because man is a part of society
and makes society responsible for his actions vicariously. “On this interpretation of the
Karmas of race determine the rise and fall of nations and their analysis becomes a subject
of the principles of the philosophy of history”. Gita also gives expression to the
socialistic principle of social and economic justice when it declares that, ‘He who enjoys
objects given by Gods without making offering in return to them is a thief. The same idea
has been expressed in Ishavasyopanishett,. ‘There is the dwelling place of God in
everything that is moving in this world. Enjoy the world with a sense of selflessness; do
not hanker after another man’s wealth’, “As every social organism is a body with a soul,
it follows that all black marketeers, profiteers and other persons indulging in antisocial
activities, whether on small or big scale are not merely thieves, but guilty of causing a
grievous hurt, as by their actions they disfigure and mutilate the collective body of the
community in which they live. 1 Justice as punishment contributes to order, peace and

~ 201 ~
 security in society. But today we consider the security of the people against certain other
hazards, risks and vicissitudes of human life (old age, illness accidents, unemployment)
as part of justice to make safeguards. Law today, is making provisions for old age,
pensions, health services, workmen’s compensations, insurance schemes etc. and all these
schemes are designated as social welfare schemes which the westerners, regard their own
discovery. Mahabharat certainly speaks for the help to be given to orphans, ailing
persons, old men etc. It was considered a moral duty of a King as a part of ‘Rajniti’ to
provide social security to his subjects. Justice, also has to provide equal opportunities of
life by removing inequalities of wealth and living conditions”. In ancient India there was
equality before law, as law as Dharma was considered superior to any political or other
authority. At the initial stage the Varna system was based on equal opportunities
according to person’s aptitudes to preserve social harmony. This Varna system
degenerated later due to historical reasons and also due to social stagnation. In the society
of early Vedic period women were equal in rank with men; the King governed by the
advice of assemblies; republication form of government was also popular; widows were
free to remarry, daughters got a share in father’s property, there were inter-caste
marriages; people were free to preach and adopt any doctrine, religion and could adopt
any mode of worship. It is only due to historical reasons and later social deterioration that
unequal conditions of life began to prevail. It is the task set for the present legislators to
repair the harm which has been done to us by centuries of political enslavement and
social stagnation”1. This requirement of Justice is fulfilled by our present Constitution.

(c) Justice as Power of Arth or Economic Power as Pursuit of Material Well-being:

Justice as Right or Reality must have reference to the whole existence which has to be
accepted, maintained and enriched. Justice thus understood is not only realization of truth
of reality through knowledge. It is more essential to realize the truth of material human
existence by pursuit of ‘Arth’ or material wellbeing viz. ‘Attainment of riches,’ material
advantages, wealth and all that covers commercial life, business affairs, work, prices, etc;
Arth in the sphere of law means plaint, action petition; in politics it is the interest of the

~ 202 ~
 State i.e.; expedience. In man’s life in general it is utility that is what is useful”. The
sources of economic justice or Arth are economic activity, commerce and agriculture- all
of them were called ‘Varta’. It is declared in Kamandak’s Nitisara-- that “when Varta is
destroyed this world is surely dead though it seems to breathe”. Arth for this purpose has
been declared as the source of the whole World. Wealth and wealth alone is important
because lack of wealth is the root of all evils”1. All this shows that justice has to maintain
the balance between spiritual and material welfare. There should be harmonious
development of Dharma and Arth. It was considered unjust for the State to rob people of
their wealth or not to provide them economic opportunity for their material wellbeing.
Mahatama Gandhi has brought about the synthesis of Dharma and Arth by his principle
of ‘Trusteeship of property’ by the rich for the good of the poor. He has condemned
economic exploitation, profiteering and mammon worship and pleaded for the rise of all
classes and people by his concept of ‘Sarvodaya’ or the rise of all. He, thus upholds
economic justice. Our Indian Constitution is also wedded to this Justice in every way. It
aspires for political, economic, and social justice in fulfillment of the ideal of Arth of
ancient India. Our Upanishads also recommend “enjoyment of worldly goods without
selfishness, greed and avarice”.

(d) Annand as Justice viz, satisfaction of self, of mind as well as soul:

As the reality is reflected in human soul as Sat, Chit, Annand and the justice as Right is
an aspect of reality itself, it cannot but lead to perfect happiness which in Indian culture is
called Annand as fulfillment in itself. But at the cosmic level of the creation this Annand
is expressed as unfulfilled desire ‘Kama’ or the creative force which urges itself to be
fulfilled by the process of creation of the world through evolution. This fulfillment
requires efforts and exertions. Annand or Bliss or Happiness is to be regained by man
who becomes delimited by the bounds of body consciousness and is carried away by
sensual satisfaction. In one of the Rigvadic hymn called Nasadiya Hymn1. This Kama or
desire for Annand is stated as the cause of the creation of this world. In this the Being of
Reality appears as becoming which is to be realized. In this way ‘beinghood’ can be

~ 203 ~
realized by the course of ‘becoming. When it gets ‘Annand’ or satisfaction of the self or
soul. Therefore the whole creation including human beings throbs with this desire for joy,
for fulfillment or happiness. But this satisfaction of desire or drive for happiness or bliss
is not to be understood as only utilitarian materialistic satisfaction of passions as sensual
pleasure but is its higher grade as real or purified pleasure called Atma– Kama or
Atmatusti which is the satisfaction of Self or Soul. Materialistic satisfaction is only
“adhoc, provisional and transitory”. It cannot be permanent and does not give tranquility
of mind and real peace which sets at rest all craving and striving. Materialistic
satisfaction in the long run becomes futile and illusory. The truth is that real satisfaction
comes from within, from man’s realization of his self or spirit. It is in our soul that real
truth or reality is seated. This truth is the truth of the whole existence. To get real
satisfaction, joy or Annand we must first purify our soul and purge it from all passions
and prejudices known as ‘Kama Krodh, Lobh and Moha’ It is so, that by giving material
happiness to others we get spiritual happiness through the medium of human service and
sacrifice in the spirit of Love, Karuna as Christ and Buddha enjoined. When we purify
our soul, it is automatically filled by human love and sympathy. In order to serve the
higher purposes of life our soul is thus saturated with the sense of service and yearning
for human welfare. Justice as ‘Kama’ through creation or Maya or lila is desire to know
and realize ‘Annandam’ or Reality itself. This joy or happiness increases by its
distribution to others. Justice as ‘Annand’ has kinship with others regard. It then becomes
‘good’ or ‘welfare’. In this respect justice as Dharma and law assumes the beneficial
aspect of joy and happiness, revealed in welfare of people ‘Lok Sangraha’ or ‘Lok
Kalyan’. The impulse for human welfare is also then the spirit of Justice as ‘Annand’. At
the lowest animal level Kama is called the ‘sensual pleasure’ ‘Vasana’, at the higher level
it is aesthetic enjoyment where beauty is truth and truth is beauty which gives.
enlightenment. Such joy or Annand is recognized as one of the aspects or ‘Vibhuties of
‘God’ as ‘Reality’. ‘Kama’ becomes the motive force for the creation of this World to get
this Annand. According to our Vedas Dharma or Law or Justice thus becomes the means
or instrument of securing ultimate happiness to all. Justice is therefore, an ideal aspiration

~ 204 ~
 for the welfare of this whole World. Ordinary pleasure in order to become ‘Just must be
sublimated into the higher type of pleasure which is not the satisfaction of body but is the
satisfaction of soul. This happens when man proceeds from what is pleasurable (Preya) to
what is good (Sreya) through Dharma or Justice Man has to march progressively from
physical biological being hood to spiritual being-hood. The state of infinite Joy and Bliss
residing in man’s possession is there in his ‘Annand – Maya- Kosh of the self. His self-
love at higher developed level becomes love of others or love of all. ‘Kama’ in its purest
sense is not sex or sensual enjoyment but a virtuous happy living” in joy and
consciousness of a limitless ocean of Joy greater than which there is no happiness- such
is the nature of Annand. The urge for “common human welfare and service naturally
ensues from the concept of the brotherhood of man and common parenthood of God”.
For the large hearted people the whole World is one family. Our Atharvaveda says that
God who is the common father urges us to come together and says “freed from hate I
bring to you concord and unanimity”. “…. may your wealth be your service; may our
action and our intellectual pursuit conduce to your happiness; may our studies our
knowledge promote your wellbeing; and may all that you have, promote our welfare”.
Justice in all its dimensions- political, economic and social does aspire for this ideal. The
concept of Yajna in Ancient India puts more emphasis upon the spirit of sacrifice self-
less service and welfare. For this reason Yajna is also identified with the status of God
because welfare is the expression of Annandam’ which is the beneficence or grace of
God. On this basis Vinoba Bhave has started two movements called Bhoodan Yajna
and Sampati Dan Yajna, the aim of which was to do justice to the land less and the poor
by making available to them land and wealth. From the point of view of Dharma as
Justice even punishment by law should be given for the welfare of the individual and
society in the spirit of Yajna or sacred duty and as a worship of God who is himself the
epitome of human welfare. Justice by its elevation is then Human Welfare without which
it cannot satisfy our human soul, nor can be certified as ‘Kama’ or God’s ‘Shakti’.

(e) Concept of Justice or Dharma as Annand – Freedom From bondage:

~ 205 ~
 The concept of human freedom is considered as the glory of the western materialistic
civilization and culture. The urge for freedom has led to enhancement of man’s power of
control over nature and development of technology to give more impetus to satisfaction
of wants, to acquire and accumulate more property, to provide more comforts and
luxuries, to enlarge man’s contractual capacity, to propagation of natural rights and now
‘Human Rights’ etc.In this way the theory of freedom has become also the theory of
Justice. On the count that freedom is necessary to provide the opportunities for
development of human personality and for utilization of his inborn potentialities to the
fullest extent freedom is justified. Though we in Indian have fought for freedom against
political enslavement which is a necessary requirement for our national identify and
existence, yet the ideology of freedom as freedom for its own sake is not justified. The
freedom craved by the western mind is the evil effect of exaggerated individualism which
gives more sanctity to the private property and has resulted in exploitation of class by
class of individuals. The Indian concept of freedom is based on man’s realization of his
own responsibilities where duties are more important than rights for individual and social
welfare. Real freedom does consist in man’s self-realization and in freeing oneself from
material bonds and limitation of self and in reclamation of spirit. At that stage freedom as
an aspect of Justice or Dharma becomes the complete ‘good’ and is materialized in
human service and welfare. It becomes then the perfection of civilization.

Justice as an ideal has a spiritual value which expresses spiritual humanism, which is the ultimate
goal of our civilization and culture and is still more of an aspiration than a fulfillment.
Achievement of Justice through the process of law is still full of uncertainties and difficulties for
the poor and ignorant people of India. The Just settlement of disputes is still a matter of chance
and luck due to various faults defects, laches, and inadequacies of law and procedure. Litigation
is still a costly game which people can ill afford. The whole legal system has become a time
consuming machine with mounting arrears and with all its delays and denials of Justice. This
makes the delivery of Justice deficient and way ward. The new reform movement through
clinical education, growth of public interest litigation, recurrent holding of Lok Adalats,

~ 206 ~
dispensation of legal services by free legal aid and introduction of computer technology etc. may
improve our delivery of Justice. We still aspire for that Justice like that of Jahangiri Insaf or long
to have Nyaya like that of ‘Judgment seat of Vikramaditya’ to have real justice for our people.

(6) Conclusion:

We in India are living in the modern age. In ancient India the concept of Dharma was the
synthesis of law, religion and morality. It represented the reality itself and the whole of
‘Right and Truth of human life. It was the spirit of Justice and the Victory of good over
evil. Now we live in multi- religious, multi lingual plural society. The word ‘Dharma’ as
Justice may seem not so representative of all the people of India due to its modern
meaning as ‘religion’ only. But we need some other concept like Dharma which can
represent Justice as a whole.

In ancient India Dharma was considered as the complete constitution of our ancient
Indian Society. Now our Constitutionalism represents our Dharma and justice which
balances and harmonizes parliamentary democracy with presidential form of
Government, preambular declaration of liberty, equality and fraternity with emergency
powers, and fundamental rights of individuals with economic and social goals of
Directive Principles of State Policy. Thus Indian Constitution makes India a welfare state
to enforce socio economic justice progressively. It has articulated the aim to establish a
socialistic pattern of society. Further to make Indian people as right conscious as well as
duty conscious our Constitution has given place now to the Fundamental Duties of
citizens. Our Constitutional faith in peaceful co-existence; internationalism etc. shows
our resolve to lay the strong foundation of a ‘Just Society’. The regular course of five
year plans, decentralization, adoption of autonomous ‘Panchayati Raj’, policy of non-
alignment and assertions of peaceful co-existence, our commitment for peaceful use of
nuclear energy without losing sight of the need of security and self-defense of the state
etc., are all in tune with the spirit of Indian culture. Our constitutionalism is the new

~ 207 ~
 incarnation of our old concept of Dharma which expresses our will and determination to
uphold justice in every walk of life of the Indian people.

Amartya Sen’s The Idea of Justice

Sen's book is principally a critique and revision of John Rawls' basic ideas in A Theory of
Justice (1971). Sen was a student of Rawls and the book is dedicated to his memory.

One of Sen's main arguments is that the project of social justice should not be evaluated in binary
terms, as either achieved or not. Rather, he claims that justice should be understood as existing to
a matter of degree, and should correspondingly be evaluated along a continuum. Furthermore, he
argues that we do not need a fully established abstract ideal of justice to evaluate the fairness of
different institutions. He claims that we can meaningfully compare the level of justice in two
institutions without positing an ideal, transcendental idea of justice. He names the opposite
position institutional transcendentalism.

Sen defends one of Rawls' most fundamental theoretical concepts: justice as fairness. Although
this is a vague notion fraught with difficulties in any particular case, he nevertheless views it as
one of Rawls' strongest insights while rejecting the necessity of Rawls' two principles of justice
emerging from the Original position thought experiment in A Theory of Justice.

Sen also draws heavily on Adam Smith and his first major work The Theory of Moral
Sentiments (1759), arguing that it is Smith's most important and unduly overlooked work.

The Idea of Justice has been described by The Economist as a "commanding summation of Mr.
Sen’s own work on economic reasoning and on the elements and measurement of human well-
being". Sen delivered a lecture based on the book (The Penguin Annual Lecture) in Kolkata on 5
August which was followed by a discussion with Barkha Dutt.

~ 208 ~